Part 2 The Protection of the Marine Environment from Land-based Sources of Plastic Pollution in International Law

In: The Mitigation of Marine Plastic Pollution in International Law
Author: Judith Schäli
Open Access

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.

Marine plastic debris is a form of marine pollution that has been receiving increasing attention from international institutions in recent years.423 So far, no global instrument is specifically tailored to the issue at stake. At an international level, marine plastic pollution is regulated in a more general way, along with other forms of marine pollution. The very core of the relevant legal framework consists of a set of general obligations related to the protection and preservation of the marine environment and a number of state duties regarding pollution prevention and control. These obligations are partly derived from general international law and reflected in unclos Part xii,424 as well as in several regional legal instruments. They apply to all sources of marine pollution.

More concrete rules and standards much depend on the specific sources of pollution: sea-based sources of marine pollution are regulated by a number of global legal instruments.425 unclos incorporates the rules and standards contained therein by reference. It plays an important role in their widespread application, even beyond the membership of corresponding treaties. Regional schemes, on the other hand, play a secondary role. This contrasts with the regime applying to land-based pollution sources, in which global standards are mainly set within a non-legal policy framework. As these standards are not legally binding and their adherence not compulsory, regional rules play a much more important role in this field. Reference to corresponding rules and standards in unclos is much weaker, and so is the role unclos plays in their application. Both regimes – on land- and sea-based sources – have their deficiencies and lacunae, for instance with respect to compliance, enforcement and liability issues.426 Challenges with regard to the regulation of land-based pollution sources are, however, more far-reaching, and more fundamental. Pertinent regulation – on the prevention and control of marine pollution from land-based sources – will be the focus of this part.

As has been shown in Part 1, distinguishing features of marine plastic pollution include its global and cumulative character and the fact that its sources are continuous, dispersed and diffuse. These features are of a peculiar interest in the analysis of the relevant legal framework and need to be taken into account. Finally, the framework will be tested against these special features in order to see whether it does or does not provide a sufficient and adequate response to them.

The analysis in Part 2 starts with the global regime (Chapter 1). It examines its major traits and their practical impacts on the challenge of massive accumulation of plastics and microplastics in marine environments. In a second step, Part 2 deals with the regional schemes and their major strengths and deficiencies with regard to the issue at stake (Chapter 2). It then turns to national implementation measures and provides a general overview of some of the relevant approaches, policies and tools that have been explored at the national and supranational levels so far (Chapter 3). Part 2 concludes that, while providing a relatively strong general framework on the protection of the marine environment and the regulation of marine pollution, the current regime does not give a sufficient response to the specific problem of marine plastic pollution from land-based sources. It is precisely the above-mentioned characteristics – the dispersed nature of the problem, as well as its diffuse sources and cumulative effects – that reveal the most evident limits of the framework.

1 The Global Framework

The view that marine resources are inexhaustible and the ocean’s assimilative capacities infinite has been widely accepted for a long period of human history. Until the middle of the twentieth century, oceans were largely treated as a mere transportation route, continuous source of food and convenient dumping site. A number of alarming signs, such as mercury pollution in Japanese Minamata Bay and the discovery of the related Minamata disease in the 1950s, as well as increasing scientific evidence that the ocean’s capacity to assimilate human discharges and wastes is both limited and quantifiable induced an irrevocable change of mind. A better understanding of the functions performed by the oceans and their importance to human survival laid the basis for the now prevailing understanding that oceans need to be managed in a much more holistic way. Environmental considerations form an indispensable part of such management. Also, increasing knowledge and awareness with regard to the sensitivity of marine ecosystems and the threats posed on them by human activities contributed to a profound adaptation of global policies and rules in the past 50 years. Today, the protection and preservation of the marine environment is one of the core objectives of the international law of the sea, with environmental concerns figuring prominently and with increasing emphasis in today’s global political agenda related to ocean governance. Regulations regarding pollution control and – more recently and more importantly – pollution prevention are at the very heart of the regime on the protection of the marine environment.

The control of vessel-based pollution, especially by oil, was the first concern to be addressed in this regard. In the course of the twentieth century, a treaty regime was developed on sea-based sources of marine pollution. The regulation of land-based sources took longer and has been much more controversial. The push towards a global solution by some actors repeatedly clashed with the reluctance of most countries towards a global convention on land-based sources. The development of non-binding instruments and the promotion of regional programmes are two aspects of a strategy to fill the regulatory void and hence avoid a deadlock in the development of a regime on land-based pollution sources. In view of changing perceptions that come along with today’s environmental challenges, including the ones posed by marine plastic pollution, this strategy is increasingly challenged.

Section A of the current chapter outlines the global policy framework relevant to the problem of marine plastic pollution, which is rooted in the global conferences of 1972 and 1992 and has become increasingly specific in recent years. Section B gives a detailed account of the relevant provisions of unclos and its Part xii in particular. Section C addresses matters of coherency between unclos and international trade regulation and gives an introduction into the relevant provisions of the law of the World Trade Organization (wto). The protection of the marine environment from land-based sources of plastic pollution is, of course, very closely related to other regulatory fields, including the regulation of hazardous chemicals, the protection of biodiversity, and waste management. Possible implications from these other fields are discussed in Section D.

A Global Policy, Principles and Concepts

i The Global Policy Framework

While evidence of the detrimental effects of marine plastic pollution has been known since the early 1970s, it was much more recently that the real scale of the problem has been recognized and that action has been taken. The UN Environment Programme (unep), today often referred to as UN Environment, played an important role in global policy formulation with respect to marine pollution from land-based sources and plastics. Major events in the development of a policy framework on land-based pollution sources include the 1972 Stockholm Conference and the subsequent establishment of UN Environment, the adoption of Agenda 21 at the 1992 Rio Conference, and the adoption of the Global Programme of Action for the Protection of the Marine Environment from Land-Based Activities (gpa) in 1995. About a decade later, the UN set marine debris and plastics on its permanent agenda and initiated a belated debate. In parallel, the issue was taken up and addressed by other fora, including in a multi-stakeholder dialogue.

1) UN Environment’s Role in Policy Formulation and Regulation with Regard to Land-based Sources of Marine Pollution

Although still with less emphasis than was put on it at later occasions, the problem of land-based pollution sources was seized on at the 1972 Stockholm Conference on the Human Environment. The event marked the start of a new era of global environmental policy formulation. The Stockholm Declaration427 was one of its main outcomes. Its Principle 7 requests states to ‘take all possible steps to prevent pollution of the seas by substances that are 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 attached action plan recommends that national controls over land-based sources of marine pollution be strengthened. In the following year, the UN General Assembly established UN Environment. The Environment Programme was given a leading role in the implementation of the action plan.428 Prevention and control of marine pollution was considered to play a key role in this regard. Most notably, UN Environment recognized the control of land-based sources of pollution as a major aspect in the protection of the human environment.429

Yet, the set-up of a global instrument on land-based pollution sources proved much more difficult than the adoption of instruments dealing with other pollution sources, despite the fact that land-based pollution sources are more important in terms of pollution quantity. They are, however, also more diffuse and variable than sea-based sources. Monitoring, control and mitigation are, therefore, more complicated with regard to land-based sources. Also, land-based pollution is often caused by activities that are closely linked to economic, industrial and social development of the respective countries. Their international regulation involves areas that are often considered to fall under the national sovereignty of states and is, therefore, particularly challenging.430 That is why a global legal agreement on land-based pollution sources was, at the time, not considered feasible.431

UN Environment thus adopted a different approach and focused on the development of regional frameworks. The idea behind this approach was to concentrate global regulatory efforts on the development of internationally acceptable guidelines and general principles, while setting region-specific strategies and standards in corresponding programmes.432 For the time being, the formulation of general principles was left to the Third United Nations Conference on the Law of the Sea, which started negotiations in 1973. In 1974, UN Environment launched the Regional Seas Programme.433 In the early 1980s, it also explored the possibilities for the adoption of an international agreement on land-based sources of marine pollution.434 The attempt faced strong resistance, however, and so the efforts remained unsuccessful.

In 1987, the World Commission on Environment and Development (wced) released its report Our Common Future (the Brundtland Report), which is known for its contribution to the promotion of the concept of sustainable development.435 In its report, the commission acknowledged that ‘the living resources of the sea are under threat from overexploitation, pollution, and land-based development’ and that ‘[t]he major land-based threats to the oceans require effective national actions based on international cooperation’.436 The commission recognized UN Environment’s role as a key agent in the preparation of global guidelines and principles on marine pollution from land-based sources. It invited UN Environment to extend its Regional Seas Programme and to develop a similar programme for international river basins.437

In 1990, the Joint Group of Experts on the Scientific Aspects of Marine Environmental Protection (gesamp) – a body that was established in 1969 in order to provide scientific advice to the UN system with respect to the protection of the marine environment – published a report on the state of the marine environment. In the report, gesamp identified land-based sources as the main contributors to marine pollution and recognized a need for strengthening their regulation at all levels.438 At the same time, gesamp acknowledged that ‘the establishment of a globally applicable and all-embracing convention on the protection of the marine environment from land-based sources of pollution seems unlikely, taking into account the many different stages of development in the various regions of the world’.439 The 1990 report is one of the first of its kind to explicitly refer to the problem of ‘plastic and other litter’ and to call for awareness-raising measures and a more rigorous enforcement of corresponding rules.440

2) The 1992 Rio Conference

The regime on land-based sources of marine pollution was also a subject of discussion during the preparation of the 1992 UN Conference on Environment and Development (1992 Rio Conference, unced). The aim of unced was the elaboration of ‘strategies and measures to halt and reverse the effects of environmental degradation in the context of increased national and international efforts to promote sustainable and environmentally sound development in all countries’.441

In the run-up to the 1992 Conference, UN Environment participated in the organization of the Intergovernmental Meeting on Land-Based Sources of Marine Pollution, which was held in May 1991 in Halifax, Canada.442 Participants of the Halifax Meeting concluded that, in order to effectively address land-based sources of marine pollution, a coherent strategy was necessary at all levels of governance. They recommended that states should adopt such a strategy ‘based on a commonly accepted set of principles, and containing a set of goals to be achieved’.443 The outcome of the Halifax Meeting was fed into the preparatory process of unced. Countries preferred, however, national and regional solutions and were not willing to commit for a global convention on the issue.444

unced was the first ‘Earth Summit’ at which nations where represented by their heads of state or government. Main outcomes of the conference included, among other things, a Declaration of Principles (later known as the Rio Declaration)445 and Agenda 21, a comprehensive plan of action covering the period beyond 1992 and into the twenty-first century.446 As they are universally endorsed and reflect a global consensus, the Rio Principles play an important role in the interpretation and application of existing rules of environmental law, as well as in the formation of new rules in this field. They are valuable environmental management tools, representing prevalent approaches to existing environmental challenges.447

Agenda 21 established a work programme for the international community in respect to all areas of human impacts on the environment.448 Chapter 17 of Agenda 21 is fully dedicated to the protection of the oceans and its resources.449 In the chapter, the importance of land-based pollution sources, including, for instance, with regard to litter and plastics, is acknowledged. It is further held that ‘there is currently no global scheme to address marine pollution from land-based sources’.450 Agenda 21 calls on states to ‘commit themselves, in accordance with their policies, priorities and resources, to prevent, reduce and control degradation of the marine environment so as to maintain and improve its life-support and productive capacities’. To this end, states should apply preventive, precautionary and anticipatory approaches; ensure prior assessment of activities that may have significant adverse impacts upon the marine environment; integrate protection of the marine environment into relevant general environmental, social and economic development policies; develop economic incentives consistent with the internalization of environmental costs and the polluter pays principle; and take into account equity concerns.451 Finally, states are invited to consider ‘updating, strengthening and extending’ relevant instruments and to assess the effectiveness of existing frameworks.452

Follow-up of unced and the implementation of Agenda 21 were originally monitored by the Commission on Sustainable Development (csd), a body established by the UN General Assembly in December 1992. The csd reported to the UN through the Economic and Social Council (ecosoc). At its seventh session, the commission recommended that priority be given to the ‘prevention of pollution and degradation of the marine environment from landbased and other activities’ and emphasized the need for cooperation at all levels and capacity-building to this purpose.453 In 2012, the csd was replaced by a high-level political forum. Implementation of Agenda 21 involves all levels of governance and different actors, including UN bodies and state governments. unclos provides the legal framework for the programme of action as contained in Chapter 17, and implementation has to be consistent with the provisions of unclos.454

3) The 1995 Washington Conference and the gpa

In Agenda 21, UN Environment was invited to convene an intergovernmental meeting on the protection of the marine environment from land-based activities.455 UN Environment followed the invitation and organized a conference that took place from 23 October to 3 November 1995 in Washington.456 At the conference, two documents were successfully adopted by 108 countries and the European Union: the Washington Declaration457 and the Global Programme of Action for the Protection of the Marine Environment from Land-Based Activities (gpa).458

The Washington Declaration is a political statement of participating countries confirming their commitment to protect and preserve the marine environment from the impacts of land-based activities, including litter. It is moreover a declaration of intention with respect to the implementation of the gpa, especially with regard to: the development of national action programmes and their implementation; capacity-building and the mobilization of resources; immediate preventive and remedial action; access to cleaner technologies; public–private partnerships; better wastewater management and treatment; the development of a legally binding instrument on persistent organic pollutants; the establishment of a clearing-house mechanism; and institutional follow-up.

Perhaps more impressively, the second instrument that was adopted at the Washington Conference, the gpa, is probably the most comprehensive international initiative addressing land-based activities. The gpa ‘aims at preventing the degradation of the marine environment from land-based activities by facilitating the realization of the duty of States to preserve and protect the marine environment’ – a duty that is stipulated in unclos.459 In addition to the prevention, reduction and control of marine pollution, the gpa refers to pollution elimination and measures that lead to the recovery of the marine environment from the impacts of pollution.460 In this respect, the gpa goes beyond the scope of corresponding provisions in unclos. The Programme of Action ‘is designed to be a source of conceptual and practical guidance’ for implementing existing obligations and commitments, including under unclos and Agenda 21, as well as for devising further action. Guidance for action at the national, regional and global level is provided in three chapters of the gpa.461

At the national level, the gpa urges states to develop national programmes of action (npas) within the framework of integrated coastal area management. The npas should include provisions for: identifying and assessing problems; establishing priorities; setting management objectives for priority problems; selecting management strategies and measures; defining criteria for evaluating the effectiveness of strategies and programmes; and ensuring programme support elements (such as financing, human resources and legal and enforcement mechanisms).462 The gpa calls on states to apply a number of principles and approaches, including integrated coastal area management; watershed management; poverty alleviation; environmental impact assessment; the protection of critical habitats and endangered species; vertical policy integration; cooperation; precaution and intergenerational equity.463 For their strategies and measures, states are invited to use best available techniques (bats) and best environmental practices (beps); clean production practices; environmentally sound and efficient technologies; and product substitution. Possible measures include market-based instruments, with due regard for the polluter pays principle and cost internalization; regulatory measures; technical assistance and cooperation; education; and awareness-raising activities. Particular reference is made to waste recovery, recycling and waste treatment, as well as to the importance of institutional arrangements, monitoring and reporting, and resource mobilization.464 Environmental effectiveness, cost-effectiveness, equity and flexibility are some of the suggested criteria for evaluating the npas.465

At the regional level, the gpa calls for enhanced cooperation in protecting the marine environment from land-based activities. It encourages states to strengthen existing regional conventions and programmes and to negotiate new ones, if appropriate.466 The gpa provides guidance for the adoption of regional action programmes following the methodology as specified with regard to npas.467 It points out a list of issues to be considered in this regard, including policy harmonization and capacity-building schemes. The involvement of landlocked states in regional schemes is strongly encouraged in the gpa.468 With respect to the institutional aspects of regional and subregional arrangements, states are recommended to invite multilateral financing agencies and other institutions to cooperate in programming and implementing regional agreements in the developing-country regions.469

The importance of effective international cooperation for the successful implementation of the gpa is also stressed, especially with regard to capacity-building, technology transfer and financial support.470 The development of a clearing-house mechanism is suggested as a means of mobilizing experience and expertise.471 Regular review of the implementation of the gpa, but also of the state of the marine environment is encouraged.472 Resource mobilization and effective institutional arrangements are considered key objectives of international cooperation under the gpa. With reference made to the commitments contained in Chapters 33 (financial resources and mechanisms) and 34 (transfer of environmentally sound technology, cooperation and capacity-building) of Agenda 21, the gpa calls for support to countries in need of assistance for the implementation of the programme.473

A special role is assigned to the Global Environmental Facility (gef) in this regard. The gef is invited to support gpa implementation under its focal areas, especially international waters and biodiversity protection.474 The gef’s Operational Strategy, which was adopted in 1995, defines the control of land-based pollution sources as a priority area for action in its focal area on international waters.475 Marine plastic pollution has been an issue under gef-6 and gef-7 replenishment and in several publications supported by the gef.476

Also, the gpa dedicated a section to the treatment of wastewater and sewage, and urged countries to develop an international legally binding instrument on the application of the prior informed consent (pic) procedure for certain hazardous chemicals in international trade and one on persistent organic pollutants (pops).477 Such instruments have been adopted in 1998 and 2001, respectively.478 Their specific implications for plastic production, use and disposal will be discussed in the Section D.

Besides the chapters guiding action at the national, regional and international levels, a full chapter of the gpa is devoted to source categories.479 One of the examined source categories is litter.480 The chapter acknowledges the negative impacts associated with plastic litter in particular, sets objectives for improvement and proposes a set of actions. With reference made to paragraph 21.39 of Agenda 21, a defined objective is the significant reduction of the amount of litter reaching the marine and coastal environment ‘by the prevention or reduction of the generation of solid waste and improvements in its management, including collection and recycling of litter’.481 Proposed objectives include the introduction of appropriate measures (regulatory measures and/or economic instruments) to encourage reduction in the generation of solid wastes, as well as ‘[c]ooperation with countries in need of assistance, through financial, scientific and technological support, in developing and establishing environmentally sound waste-disposal methods and alternatives to disposal’.482

In 1997, the UN General Assembly adopted a resolution on institutional arrangements of the gpa and designated UN Environment as the lead agency in the implementation of the gpa.483 In the same year, a UN Environment coordinating office was established in The Hague, the Netherlands. Acting in its role as secretariat of the gpa,484 UN Environment developed a clearing-house mechanism in cooperation with a number of UN agencies involved in the implementation of the gpa. It has promoted cooperation between relevant actors and mainstreaming of issues related to the implementation of the programme into different fora.485 While, in general, the gpa has been well received, implementation is slow and insufficient.486 Key challenges with regard to implementation of the gpa include: limited national participation and implementation; limited national reporting; limited coverage of pollutant source categories; limited financing; the non-legally binding character of the gpa; and deficiencies in international environmental governance.487

At an international level, states committed themselves to advance implementation of the gpa at the World Summit on Sustainable Development (wssd) held in Johannesburg, South Africa, in 2002.488 In the Johannesburg Plan of Implementation, one of the main outcomes of the wssd, states are also called on to ‘strengthen the capacity of developing countries […] to mainstream the objectives of the Global Programme of Action and to manage the risks and impacts of ocean pollution’.489 Since 2001, the UN General Assembly has referred to the gpa, with increasing emphasis, in its annual resolutions on oceans and the law of the sea.490

Every five to six years, there is an intergovernmental review meeting on the implementation of the gpa.491 In preparation for the second meeting in 2006, a report was issued assessing the state of the marine environment.492 While progress was noted with regard to some source categories of marine pollution, including pops, the report showed that the problem of marine litter had worsened, despite control measures.493 Marine plastic litter has, therefore, been identified as a priority for action.494 At the third review meeting on the implementation of the gpa in Manila in 2012, a declaration on furthering the implementation of the gpa was adopted. In the declaration, generally referred to as the Manila Declaration, 64 governments and the European Commission recognized that:

marine litter is a problem that is global in scale and underestimated in impact; that it directly threatens coastal and marine habitats and species, economic growth, human health and safety, and social values; that a significant portion of marine litter originates from land-based activities; and that movement of litter and debris, exacerbated by storm events, has significant impacts on the marine environment.495

They therefore decided that the gpa coordination office focus its work on marine litter as one out of three priority source categories.496 The governments moreover called for the establishment of a global partnership on marine litter. The Manila Declaration provided UN Environment with a strong mandate to continue its work on marine litter.

4) The 2011 Honolulu Strategy: Plastics Coming into Focus

In March 2011, almost a year before the Manila review meeting, the noaa and UN Environment co-organized the Fifth International Marine Debris Conference (5imdc) which was held in Honolulu, Hawai’i, US. About 450 people from 38 countries and with different institutional backgrounds participated in the conference. The theme of the conference was Waves of Change: Global Lessons to Inspire Local Action.497 The 5imdc was an awareness-raising event that kicked off and promoted a cross-sectoral and multi-stakeholder dialogue by gathering representatives from governments, industry, academia and civil society,498 who all committed to ‘reduce waste in order to halt and reverse the occurrence of marine debris’ and to ‘advocate mechanisms that emphasise the prevention or minimisation of waste’.499 The conference had much broader outreach than its four precedents. At its 66th session, the UN General Assembly took note of the conference and encouraged states ‘to further develop partnerships with industry and civil society to raise awareness of the extent of the impact of marine debris on the health and productivity of the marine environment and consequent economic loss’.500

The event contributed significantly to the development of the Honolulu Strategy: A Global Framework for Prevention and Management of Marine Debris.501 As a framework for a comprehensive and global effort to reduce the global impacts of marine debris, the Honolulu Strategy ‘provides a focal point for improved collaboration and coordination among the multitude of stakeholders across the globe concerned with marine debris’. It is designed as a planning and monitoring tool for programmes and projects dealing with the prevention and reduction of marine debris.502 Three goals and 19 strategies are the core of the Honolulu Strategy (see Table 4). Goal A consists of a ‘reduced amount and impact of land-based sources of marine debris introduced into the sea’. The seven strategies that come within the ambit of Goal A much focus on waste minimization, improved waste and wastewater management, and improved regulatory frameworks and compliance in this regard. The annex to the document contains a list of possible action for each of the proposed strategies. While the scope of the Honolulu Strategy includes all sorts of (anthropogenic) marine debris, the document much focuses on plastic debris in its analysis of the problem. Also, proposals for action as contained in the annex are well designed for plastics.

Table 4
Honolulu strategy: goals and strategies

Goal A: Reduced amount and impact of land-based sources of marine debris introduced into the sea

Strategy A1. Conduct education and outreach on marine debris impacts and the need for improved solid waste management

Strategy A2. Employ market-based instruments to support solid waste management, in particular waste minimization

Strategy A3. Employ infrastructure and implement best practices for improving stormwater management and reducing discharge of solid waste into waterways

Strategy A4. Develop, strengthen, and enact legislation and policies to support solid waste minimization and management

Strategy A5. Improve the regulatory framework regarding stormwater, sewage systems, and debris in tributary waterways

Strategy A6. Build capacity to monitor and enforce compliance with regulations and permit conditions regarding litter, dumping, solid waste management, stormwater, and surface runoff

Strategy A7. Conduct regular cleanup efforts on coastal lands, in watersheds, and in waterways – especially at hot spots of marine debris accumulation

Goal B: Reduced amount and impact of sea-based sources of marine debris, including solid waste; lost cargo; abandoned, lost, or otherwise discarded fishing gear (aldfg); and abandoned vessels, introduced into the sea

Strategy B1. Conduct ocean-user education and outreach on marine debris impacts, prevention, and management

Strategy B2. Develop and strengthen implementation of waste minimization and proper waste storage at sea, and of disposal at port reception facilities, in order to minimize incidents of ocean dumping

Strategy B3. Develop and strengthen implementation of industry best management practices (bmp) designed to minimize abandonment of vessels and accidental loss of cargo, solid waste, and gear at sea

Strategy B4. Develop and promote use of fishing gear modifications or alternative technologies to reduce the loss of fishing gear and/or its impacts as aldfg

Strategy B5. Develop and strengthen implementation of legislation and policies to prevent and manage marine debris from at-sea sources, and implement requirements of marpol Annex v and other relevant international instruments and agreements

Strategy B6. Build capacity to monitor and enforce (1) national and local legislation, and (2) compliance with requirements of marpol Annex v and other relevant international instruments and agreements

Goal C: Reduced amount and impact of accumulated marine debris on shorelines, in benthic habitats, and in pelagic waters

Strategy C1. Conduct education and outreach on marine debris impacts and removal

Strategy C2. Develop and promote use of technologies and methods to effectively locate and remove marine debris accumulations

Strategy C3. Build capacity to co-manage marine debris removal response

Strategy C4. Develop or strengthen implementation of incentives for removal of aldfg and other large accumulations of marine debris encountered at sea

Strategy C5. Establish appropriate regional, national, and local mechanisms to facilitate removal of marine debris

Strategy C6. Remove marine debris from shorelines, benthic habitats, and pelagic water

5) Plastic Marine Debris as a Raising Concern in Formal UN Processes

Although the 1990 gesamp report on the state of the marine environment, Agenda 21 and the gpa all referred to the challenges related to plastic litter and marine debris, it took another decade for the topic to be set on the permanent agenda of the UN. The Open-Ended Informal Consultative Process on Oceans and the Law of the Sea (icp) played an important role in this regard.503 Following a recommendation of the UN General Assembly,504 it discussed the issue of marine debris at its sixth meeting in 2005505 and again at its seventeenth meeting, which was convened in June 2016 in New York, USA. The topic suits well, as the icp serves as a forum to ‘foster productive exchange of information and ideas on complex ocean issues that do not yet have a single institutional “home”’.506 During the discussions in 2016, it was highlighted that the size of the problem had increased exponentially since the topic of marine debris was addressed at the sixth meeting in 2005. There was wide agreement that ‘marine debris in general, and plastics in particular, were some of the greatest environmental concerns of our time, along with climate change, ocean acidification and loss of biodiversity’.507 Several delegates emphasized the need to address the issue, ‘both downstream, through improved mechanisms for waste management, disposal and recycling, and upstream, by addressing consumption and production patterns, including through awareness-raising campaigns’.508

Since icp-6 in 2005, marine debris has featured in the General Assembly’s annual resolution on oceans and the law of the sea. Plastic debris, specifically, has come into focus more recently, especially after UN Environment had issued a series of information documents and guidelines on marine (plastic) litter.509 Since about the year 2010, other international bodies started to pick up the topic, including, for instance, the UN Convention on Biological Diversity (cbd).510 Only since 2012, the General Assembly’s law of the sea resolutions have referred to plastics as a source of concern for the marine environment.511

2012 was also the year of the UN Conference on Sustainable Development (uncsd, also known as Rio+20) held 20 years after the 1992 Rio Conference. Like its predecessor, the uncsd was hosted by Brazil and took place in the city of Rio de Janeiro. The conference was attended by representatives from 191 states, including 79 heads of state or government. They adopted an extensive political document suggesting practical measures for implementing sustainable development. The document is known under its title The Future We Want. A full section is devoted to oceans and seas. In this section, states committed to:

protect, and restore, the health, productivity and resilience of oceans and marine ecosystems, and to maintain their biodiversity, enabling their conservation and sustainable use for present and future generations, and to effectively apply an ecosystem approach and the precautionary approach in the management, in accordance with international law, of activities impacting on the marine environment.512

Also, as the participating states noted with concern that ‘the health of oceans and marine biodiversity are negatively affected by marine pollution, including marine debris, especially plastic’, they committed ‘to take action to, by 2025, […] achieve significant reductions in marine debris to prevent harm to the coastal and marine environment’.513 In line with these commitments and in response to a respective call in the Manila Declaration, the Global Partnership on Marine Litter (gpml) was launched at the uncsd. The gpml is a voluntary multi-stakeholder coordination mechanism focusing on the prevention, reduction and better management of marine litter. The mechanism operates under the auspices of the gpa and is open to governments, ngos, academia, the private sector, civil society and individuals.514

Moreover, states launched a process at the uncsd to develop a set of Sustainable Development Goals (sdgs). In 2015, the UN General Assembly adopted the 2030 Agenda on Sustainable Development and, with it, 17 sdgs and 169 targets to be achieved by 2030.515 The sdgs are not legally binding. Their implementation is, however, monitored and reviewed at the global level by the use of a set of global indicators. Many of the goals and targets relate to marine litter in a direct or indirect way. Most importantly, Goal 14 is to conserve and sustainably use the oceans, seas and marine resources. Target 14.1 is to prevent and significantly reduce marine pollution of all kinds by 2025, in particular pollution from land-based activities, including marine debris and nutrient pollution. Table 5 shows a number of targets that are relevant for the prevention and control of marine plastic litter.

Table 5
sdg targets related to marine littera

6.3 by 2030 the proportion of untreated wastewater should be halved

11.6 By 2030, reduce the adverse per capita environmental impact of cities, including by paying special attention to air quality and municipal and other waste management

12.1 Implement the 10-year framework of programmes on sustainable consumption and production, all countries taking action, with developed countries taking the lead, taking into account the development and capabilities of developing countries

12.2 By 2030, achieve the sustainable management and efficient use of natural resources

12.4 By 2020, achieve the environmentally sound management of chemicals and all wastes throughout their life cycle, in accordance with agreed international frameworks, and significantly reduce their release to air, water and soil in order to minimize their adverse impacts on human health and the environment

12.5 By 2030, substantially reduce waste generation through prevention, reduction, recycling and reuse

12.b Develop and implement tools to monitor sustainable development impacts for sustainable tourism that creates jobs and promotes local culture and products

14.1 By 2025, prevent and significantly reduce marine pollution of all kinds, in particular from land-based activities, including marine debris and nutrient pollution

14.2 By 2020, sustainably manage and protect marine and coastal ecosystems to avoid significant adverse impacts, including by strengthening their resilience, and take action for their restoration in order to achieve healthy and productive oceans

14.7 By 2030, increase the economic benefits to Small Island developing States and least developed countries from the sustainable use of marine resources, including through sustainable management of fisheries, aquaculture and tourism

14.a Increase scientific knowledge, develop research capacity and transfer marine technology, taking into account the Intergovernmental Oceanographic Commission Criteria and Guidelines on the Transfer of Marine Technology, in order to improve ocean health and to enhance the contribution of marine biodiversity to the development of developing countries, in particular small island developing States and least developed countries

14.c Enhance the conservation and sustainable use of oceans and their resources by implementing international law as reflected in unclos, which provides the legal framework for the conservation and sustainable use of oceans and their resources, as recalled in paragraph 158 of The Future We Want

15.5 Take urgent and significant action to reduce the degradation of natural habitats, halt the loss of biodiversity and, by 2020, protect and prevent the extinction of threatened species

a

See unep, ‘unea-2 Technical Report on Marine Plastic Debris’ (n 514) 6–7.

In June 2017, a high-level UN conference to support the implementation of sdg 14 was held at the UN Headquarters in New York.516 The conference aimed to identify ways and means to support the implementation of sdg 14, enhance stakeholder involvement and provide input to the High-Level Political Forum on Sustainable Development (hlpf), a body established to boost efforts to achieve the sdgs.517 The conference produced three outcomes: an intergovernmentally agreed Call for Action; a registry of voluntary commitments (with 1328 initial registrations and more than 150 commitments submitted to reduce plastic waste); and key messages from the partnership dialogues. Plastics and microplastics were widely discussed at the conference. In the Call for Action, states called on all stakeholders to:

  1. accelerate actions to prevent and significantly reduce marine pollution of all kinds, particularly from land-based activities, including marine debris, plastics and microplastics;
  2. promote waste prevention and minimization;
  3. develop sustainable consumption and production patterns;
  4. implement long-term and robust strategies to reduce the use of plastics and microplastics, in particular plastic bags and single-use plastics.518

At the uncsd in 2012, states decided to strengthen UN Environment and establish universal membership to its Governing Council.519 This decision laid the foundations for the first UN Environment Assembly (unea), which was convened in June 2014 in Nairobi, Kenya. In its Resolution 1/6, unea recognized ‘that plastics, including microplastics, in the marine environment are a rapidly increasing problem due to their large and still increasing use combined with the inadequate management and disposal of plastic waste’.520 For this reason, the UN Environment Executive Director was requested to undertake a study on marine plastic debris and marine microplastics and to present it at the second unea in May 2016. Based on this report521 and a set of policy recommendations by the executive director, unea-2 adopted a second resolution on marine plastic litter and microplastics and requested that the executive director assess the effectiveness of international, regional and subregional governance strategies and corresponding regulatory frameworks relevant to marine plastic litter and microplastics, and to identify possible gaps and options for addressing them.522 In his report, the executive director judged the existing framework to be insufficient. He recommended the establishment of a global umbrella mechanism specific to marine plastic litter and microplastics and proposed the establishment of a new international legally binding architecture as one out of several measures to effectively tackle the problem in a multilayered governance approach.523 The report was presented at unea-3 in December 2017. unea hence established an Ad Hoc Open-Ended Expert Group on Marine Litter and Microplastics (aheg) to make recommendations to strengthen international governance structures for combating marine plastic litter and microplastics.524 The mandate of the ad hoc expert group was extended at unea-4 in March 2019 and the group was mandated to analyse potential response options related to marine plastic litter and microplastics.525

After four meetings between 2018 and 2020,526 the aheg forwarded a Chair’s Summary to unea-5.1, held virtually in February 2021. In the summary, the aheg identified a range of national, regional and international response options. It suggested considering the establishment of an Intergovernmental Negotiation Committee (inc), aimed to frame and coordinate a new global instrument on marine plastics and microplastics.527 The aheg proposal reflects a widespread call for collective action at the global level and was promply taken up by the governments of Ecuador, Germany, Ghana, and Viet Nam. In order to make concrete suggestions at the resumed fifth session of unea in February 2022, they co-convened a Ministerial Conference under the auspices of UN Environment in September 2021. At the conference, states called on unea to establish an inc towards a new global agreement.528 Suggested elements of such an agreement include:

  1. global and national reduction targets;
  2. design standards;
  3. phasing out avoidable plastic products;
  4. facilitation of national and regional action plans;
  5. sharing of scientific knowledge through a scientific panel and utilizing globally harmonized monitoring methodology;
  6. international coordination of financial and technical resources.

Marine plastic pollution has also been addressed in regional political and economic fora. In June 2015, the Group of Seven (G7)529 adopted an Action Plan to Combat Marine Litter and committed to support: development and implementation of national or regional action plans; existing platforms and tools for cooperation such as the gpa, the gpml and the Regional Seas Conventions and Action Plans; other countries, especially developing countries, in their efforts to deal with the problem; and the use of a broad range of policy toolkits and available instruments, including economic incentives, market-based instruments, and public–private partnerships to combat marine litter. They also committed to prioritize sound waste management, including with regard to waste minimization, reuse and recycling; prevention of microplastics entering the marine environment; reduction of disposable single-use items; and promotion of best practices along the whole plastics manufacturing and value chain from production to transport.530 In June 2018, the G7 further strengthened its commitment by launching the Ocean Plastics Charter. Since its launch, an increasing number of governments and business organizations adopted the charter, pledgeding, among other tings, to significantly reduce the unnecessary use of single-use plastics.531

In November 2017, the Association of Southeast Asian Nations (asean) held a Conference on Reducing Marine Debris in the asean Region in cooperation with Thailand and the International Union for Conservation of Nature and Natural Resources (iucn). Fifteen member economies of the Asia-Pacific Economic Cooperation (apec) met in June 2018 in Busan, Korea, and proposed wide-ranging measures to prevent and manage the problem of marine debris. Similarly, the Group of 20 (G20) adopted the G20 Action Plan on Marine Litter at its summit in Germany in 2017.532 Building on the framework, the G20 Ministerial Meeting on Energy Transitions and Global Environment for Sustainable Growth adopted an implementation framework for action on marine plastic litter in June 2019.533

Marine pollution, including plastic, is also on the permanent agenda of the annual Our Oceans Conference. The fifth Our Ocean Conference was held from 29 to 30 October 2018 in Bali, Indonesia. Several countries committed to take measures to reduce marine plastic pollution in the oceans. The EU and Norway committed to assist developing countries, especially Asian countries, to combat marine litter and microplastics. The World Bank committed US$250 million to address marine litter and pollution. In addition, a number of multinational companies, such as Nestlé, Coca-Cola and Unilever, committed to increase the proportion of recycled plastic in products and packaging.534 The sixth Our Oceans Conference was held in October 2019 in Olso, Norway, and generated 370 pledges for a clean and healthy ocean, 76 of which relate directly to marine debris.535 The seventh Our Ocean Conference is scheduled for April 2022.

ii Relevant Principles and Concepts

Two legal principles or concepts that are highly relevant to marine plastic pollution mitigation are introduced in this subsection. Further environmental principles, such as the precautionary approach, are addressed in the subsequent section, where relevant.

1) Sustainable Development

The concept of sustainable development was brought up in answer to a number of fundamental challenges that have confronted the international community for the better part of a century. Against the backdrop of decolonization, widespread poverty and inequalities, and raising environmental concerns, the international community struggled with the reconciliation of differing interests and policy concerns. Regulatory and policy approaches were fragmentary and incoherent, and debates hampered by a North–South divide.536 With the rise of the concept of sustainable development, emphasis is increasingly put on the integration and reconciliation of different needs and interests, and policy coherence.

In 1983, the UN General Assembly commissioned a report on ‘long-term environmental strategies for achieving sustainable development to the year 2000 and beyond’.537 The respective report was prepared by the wced and issued in 1987. In the report, commonly known as the Brundtland Report,538 sustainable development was defined as ‘development that meets the needs of the present without compromising the ability of future generations to meet their own needs’.539 According to the report, the principle ‘contains within it two key concepts:

  1. the concept of ‘needs’, in particular the essential needs of the world’s poor, to which overriding priority should be given; and
  2. the idea of limitations imposed by the state of technology and social organization on the environment’s ability to meet present and future needs.540

The concept of sustainable development, as defined in the Brundtland Report, was endorsed at the 1992 Rio Conference and introduced into the outcome documents, including the Rio Declaration, Agenda 21, the UN Framework Convention on Climate Change (unfccc), the cbd, and the Forest Principles.541 Most notably, the concept informed a number of Rio Principles.542 With the Rio endorsement, the concept gained rapidly traction in public international law and greatly influenced its further development. By now, the concept has been firmly established as an international legal concept. It forms an integral part of a great number of international instruments and is recognized in all regions of the world.543 Yet, while there is wide agreement on the existence and significance of the concept per se, there is still a certain vagueness in the concept’s concrete contours.544

The most essential elements inherent to the concept are reflected in the Rio Declaration and its Principles 3–8 in particular, as well as in the New Delhi Declaration of Principles of International Law Relating to Sustainable Development as adopted by the International Law Association (ila) at its 70th Conference in 2002.545 From a substantive point of view, these elements include the conservation and sustainable use of natural resources;546 integration of environmental protection and economic development;547 the right to development;548 and the concepts of intra- and intergenerational equity.549 Intragenerational equity implies that in its use of natural resources and in the context of other activities, a state must take account of the needs of other states (especially developing and least developed states). The concept also refers to a fair distribution of resources and justice within a single state. The principle of intergenerational equity implies that there is a need to preserve natural resources for the benefit of future generations.550 Intergenerational equity stands for the temporal dimension of sustainable development. While there is a broad discussion with regard to the exact nature and content of our obligations towards future generations, or the rights future generations hold, it goes from the Brundtland definition that current generations are requested (at least on moral grounds) to make sure not to compromise the ability of future generations to satisfy their needs and solve their problems. Sustainable development is, hence, not a preservationist approach in a strict sense. With reference taken to the needs of future generations, the concept is based on a utilitarian approach in promotion of development ‘of a special qualitative nature’.551

Public participation in decision-making and environmental impact assessment have been referred to as the main procedural elements of sustainable development.552 Also, it has been argued that sustainable development can serve as a concept of legal methodology framing the discretionary space of decision makers in legislative and judiciary processes. As such, it requires the involvement of stakeholders; the integration and reconciliation of social, economic, environmental and future-related aspects ‘in such a way that they mutually reinforce each other or avoid the impacts of trade-offs’; and compliance with basic substantial and procedural principles with respect to coherence, proportionality, efficiency, transparency, equity and public participation.553 The procedural dimension of the concept is considered highly relevant. It requires ‘development decisions to be the outcome of a process which promotes sustainable development’.554

In this sense, the principle of sustainable development provides guidance for decision makers on how to deal with conflicting interests or norms and sets the leading goals – and compulsory objectives – ‘in shaping and applying the law, both domestically and internationally’.555 This is particularly important with regard to plastic pollution mitigation, which involves extremely diverse interests of an ecological, economic and social nature. The principle requires states to take into account environmental, economic and social impacts of plastic pollution, and to assess and weigh up costs of action and inaction, including for poor country regions and future generations. Assessment results are to be communicated and fed in decision-making procedures. Sustainable development thus demands a coherent, transparent and equitable formulation of policy and law.

2) The Polluter Pays Principle

The polluter pays principle is an economic principle guiding the allocation of costs for environmental damage or pollution in such a way that, as a general rule, the polluter is charged with the costs of pollution prevention and control measures. As will be explained below, the principle is closely related to the notion of cost internalization, the question of permissible state subsidies and the rules governing liability for environmental damage.556

The polluter pays principle is well established in oecd and EU countries where it has been influencing environmental regulation for more than 40 years.557 Beyond this geographic scope, the implications of the principle are less clear. The principle was endorsed at the Rio Conference in 1992 and is expressed in Rio Principle 16. The vague formulation in Rio Principle 16 gives rise to the supposition that it is the result of a delicate compromise:

National authorities should endeavour to promote the internalization of environmental costs and the use of economic instruments, taking into account the approach that the polluter should, in principle, bear the cost of pollution, with due regard to the public interest and without distorting international trade and investment.

The normative character of Rio Principle 16 is questionable, not only because of the soft law nature of the Rio Declaration but also because of the weak wording of Principle 16 and incoherent state practice.558 If any obligations can be drawn from the polluter pays principle in a general way, then they are coupled with a high degree of flexibility in national implementation. There are, however, a number of multilateral and regional treaties that refer to the principle in their preambles559 or include it in the operative part.560

The oecd was the first international body to expressly refer to the polluter pays principle in an instrument and to promote its use. According to an oecd Council Recommendation of 1972, the principle means that:

the polluter should bear the expenses of carrying out [pollution prevention, reduction and control] measures decided by public authorities to ensure that the environment is in an acceptable state. In other words, the cost of these measures should be reflected in the cost of goods and services which cause pollution in production and/or consumption. Such measures should not be accompanied by subsidies that would create significant distortions in international trade and investment.561

The polluter pays principle implies the notion of cost internalization, according to which negative external effects of production and consumption (generally referred to as negative externalities) are to be charged to producers or consumers by means of economic and other instruments.562 Producers may pass on, fully or in part, their environmental costs into prices. In this way, product and service prices more properly reflect real costs, including the ones otherwise borne by public authorities or the victims of pollution. If such costs are hidden, ‘markets will react to distorted price signals and make inefficient economic choices’.563 However, the polluter pays principle, as commonly understood and defined in the oecd Council Recommendation, does not require full internalization of environmental costs but serves as an efficiency principle providing guidance for cost allocation.564 The main instruments for public authorities to implement the polluter pays principle, especially with regard to its function of cost internalization, consist of market-based instruments, including taxation and charges, as well as regulatory measures and standards.565

The principle is closely related to the notion of extended producer responsibility, an important instrument for the promotion of recyclable materials and green design. Extended producer responsibility shifts the responsibility for waste management from the state to the private industry. It is based on the assumption that producers have the greatest control over product design and thus over the product’s recyclability or toxicity. In order to incentivize sustainable product design, producers are obliged to organize for and pay the costs related to the disposal of their products. This may be done in the form of a reuse, take-back or recycling programme. In this way, producers and retailers have to internalize waste management costs in their product prices.566

The polluter pays principle as applied within the oecd serves as an objective to member countries rather than a strict rule, and allows for exceptions. This being the case, the oecd aims at policy harmonization among countries and at promoting a level playing field. In order to avoid distortions in international trade and investment, especially through the subsidization of polluting activities by states, the oecd examined the question of allowable exceptions to the principle.567

As it guides cost allocation in the case of pollution and environmental damage, the principle is related to the rules dealing with liability and compensation for environmental damage.568 It can influence the choice of the legislator between strict liability for environmental damages and a fault-based regime. As a tendency, it would do so in favour of the former to the detriment of the latter, that is, pushing towards a duty by polluters to compensate harmful consequences of their activities irrespective of their own fault.569 Non-compensation for environmental damage (for instance because fault cannot be proved in a fault-based liability system) is not compatible with the polluter pays principle, as it transfers the costs of pollution to the victims or the public at large.570

The concept of civil liability is of little use if victims are confronted with pollution from a diffuse nature. This includes cases in which damage is caused collectively or by the accumulation of many small acts of pollution, each of which is lawful.571 In such contexts, it is often impossible to identify individual polluters. Even if they can be identified, their contribution to the damage is negligible and does not justify compensation for damage. Marine plastic pollution from land-based sources is a suitable example in this regard. Usually, such pollution is caused by the combined acts of a high number of small actors rather than by the activity of a single large operator. If, as is assumed, large operators are involved, for instance the operator of a badly maintained landfill located close to the coast and leaking into the ocean, it is difficult to attribute plastic debris to this specific operator once it has entered the marine environment. If damage is attributable to an operator, compensation will still not be guaranteed, as it depends on the operator’s solvency. Also, civil compensation is not a useful concept for avoiding harm to the environment that does not have any prompt and direct consequences for humans. The entanglement of protected or otherwise unexploited marine species in plastic debris, for instance, may not entail a quantifiable loss for any individual person or social group. If so, a legal interest in compensation for damage is questionable.

In the case of plastics, the polluter pays principle’s inherent request for cost internalization seems particularly interesting. Respective measures, whether economic or regulatory in character, have a great potential to influence the behaviour of all actors involved in the life cycle of plastic products. Applied within a coherent policy framework, the polluter pays principle provides a useful approach to pollution prevention and may play an important role in the shift towards more sustainable production and consumption patterns.572 Rather than obliging states to take specific measures, the principle thus serves as a guiding tool for the adoption and implementation of an effective and coherent policy framework that provides an enabling environment for sustainable development.

Conclusion of Section A

This section provided an overview on the development of global policies related to plastics and the mitigation of marine pollution from land-based sources. It showed that since the 1990 gesamp report on the state of the marine environment, marine pollution from land-based sources has increasingly been accepted as a major concern by relevant bodies and the international community. With the firm mission to effectively tackle the problem, UN Environment established the Regional Seas Programme573 and adopted the gpa in 1995. The gpa provides for valuable guidance for action at different levels of governance and remains one of the most important fora in this respect.

It took more than another decade for plastics to get wider attention by the international community. Thenceforth, awareness grew rapidly. In the last few years, the international community has been stressing the problem of marine plastic pollution, particularly from land-based sources, in many occasions, including at uncsd in 2012, unea, the UN General Assembly and the Ocean Conferences. States recognized the urgency of action, set goals and targets to guide that action and launched a process under unea to investigate possible solutions. Today, many countries and other actors call for an international agreement as a form of collective response to an issue of global concern.

Intergovernmental action is complemented by broader stakeholder involvement, such as in the Honolulu Strategy, under the aegis of the gpml or in form of the partnership dialogue of the Ocean Conference. Policy formulation is moreover guided by a number of concepts and principles, including sustainable development and the polluter pays principle.

B The UN Convention on the Law of the Sea

This section will examine the relevant provisions of unclos, which is the most central global legal instrument with regard to the protection of the marine environment from land-based sources of plastic pollution. unclos ‘provides the legal framework for the conservation and the sustainable use of the oceans and their resources’,574 sets out a set of principles on the protection and conservation of the marine environment and works as an umbrella instrument in this regard. The treaty was adopted at the Third United Nations Conference on the Law of the Sea (1973–1982) on 10 December 1982 and entered into force on 16 November 1994. Today, it has 168 parties, including the European Union.575 While the convention ‘sets out the legal framework within which all activities in the oceans and seas must be carried out’,576 its material scope goes beyond such activities and includes land-based activities with potential effects on the marine environment. Because of its supposed comprehensiveness and wide participation, unclos is often seen as a ‘constitution for the ocean’.577

The adoption of unclos has been pivotal to the codification and evolution of the law of the sea: many of the convention’s substantive provisions are widely recognized to reflect customary international law – either because they are a codification of pre-existing customary rules or because they have acquired such status in the course of the negotiations or after adoption.578 In its different parts, the convention seeks to coordinate and reconcile the interests of individual states in what is called the zonal management approach. At the same time, it provides a framework for international cooperation in marine affairs in order to protect the common interests of the international community as a whole (integrated management approach). This double approach is another particularity of unclos.579

With regard to common interests, unclos has significantly contributed to, and reflects, an expansion of the thematic scope of the law of the sea to issues such as pollution prevention and the protection of the marine environment.580 Under the pre-unclos regime, only a few internationally agreed regulations imposed any kind of limits to the freedom of states to pollute the marine environment, and none of these applied to land-based pollution sources or airborne pollution.581 A number of maritime disasters, such as the sinking of a Liberian oil tanker (Torrey Canyon) off the coast of England in 1967, played a crucial role for the subsequent regulatory efforts towards a more stringent regime. The regulation of marine conservation and the protection of the marine environment, including from land-based pollution sources, gained impetus on the international agenda in the early 1970s, shortly before unclos was negotiated. The text of unclos has been greatly influenced by the development of international environmental law during that time. This being said, the problem of plastic accumulation in the oceans was not widely recognized yet as a matter of major concern at the time when the convention was adopted.

In view of the increasing degradation of marine ecosystems, the establishment of an agreed and more comprehensive framework was one of the major objectives – and achievements – of the Third United Nations Conference on the Law of the Sea.582 The aim to establish

a legal order for the seas and oceans which will facilitate international communication, and will promote the peaceful uses of the seas and oceans, the equitable and efficient utilization of their resources, the conservation of their living resources, and the study, protection and preservation of the marine environment583

is prominently laid down in the preamble of the treaty. The protection and preservation of the marine environment specifically refers to the prevention, reduction and control of pollution from all sources, but also includes the conservation of living resources and ecosystems.584

Rules that touch upon environmental protection can be found throughout the convention. Most fundamentally, unclos Part xii is fully devoted to the issue and provides a unifying framework on marine environmental protection. unclos is the first global instrument to articulate a general obligation of states to protect and preserve the marine environment585 and to address all sources of pollution, including, in particular, pollution from land-based sources, seabed activities within or beyond national jurisdiction, and vessels, by dumping and from or through the atmosphere.586 With the introduction of these general obligations587 unclos brought about a major shift in marine environmental protection from a substantial freedom to pollute the oceans towards a global regime of diligent pollution control. Under unclos, a sound marine environment is considered a matter of common concern beyond the interests of individual states.588

The structure of the treaty reflects its wide thematic scope: in addition to its spatial regulations dividing the ocean into a number of jurisdictional zones (unlcos Parts ixi) and its provisions on the protection and preservation of the marine environment (Part xii), the convention addresses further issues, such as marine scientific research (Part xiii) and development and transfer of marine technology (Part xiv). It moreover lays down a comprehensive dispute settlement system (Part xv) and established the International Tribunal for the Law of the Sea (itlos) as an independent judicial body with the power to adjudicate disputes with respect to the interpretation and application of the convention (unclos Annex vi).

This chapter starts with an introduction into the convention’s jurisdictional provisions in order to provide an overview of the different maritime zones (i). A basic understanding of the jurisdictional set-up under unclos is important to better understand the convention’s regime on the protection of the marine environment from different sources of pollution, respective obligations of states arising from the convention, and the possibilities for future action in addressing the problem of marine plastic pollution. Subsection ii starts with the treaty’s definition of marine pollution, before it turns to the general provisions of Part xii, which are deliberately drafted in an open-textured way. It shows how these provisions can be and must be interpreted and applied in the light of contemporary international environmental law. It also shows how respective obligations evolved in scope and must be applied in coherence with other instruments, including, for instance, the UN Convention on Biological Diversity.589 Finally, Subsection ii addresses the more specific obligations under Part xii: it discusses the relevance of global standards and non-binding instruments that have been adopted with regard to marine plastic pollution from land-based sources, issues related to due diligence and the differentiation in the standard of care, the role of risk evaluation and precaution, environmental impact assessment, and cooperation. Subsection iii analyses the main challenges related to the enforcement of unclos Part xii. In its concluding remarks, the section recaps the main gaps and challenges of the unclos regime when applying it to the issue of marine plastic pollution. The subsequent sections C and D will discuss other relevant instruments and treaty regimes.

i Maritime Zones

Marine spaces include the seabed and its subsoil, the superjacent water column and the airspace above the sea. In Parts ixi, unclos divides these spaces into a number of jurisdictional zones, each of which entails different rights and duties pertaining to either individual states or the international community. Most fundamentally, the ocean spaces are divided into zones under national jurisdiction over which coastal states exercise full territorial sovereignty or (limited) sovereign rights, and areas beyond national jurisdiction, which are governed by the concept of the freedom of the high seas, unless otherwise provided.590

Plastic debris and microplastics that enter the marine environment from land-based sources may travel through or end up in all the different areas of the sea, including domestic coasts, areas under foreign jurisdiction and common spaces. They often accumulate on shores, but also in waters of the global vortexes situated in the high seas, and on the deep seabed. unclos sets the jurisdictional framework that applies to these different areas and defines the very basic rights and responsibilities that states hold in each of them, including with respect to marine plastic pollution. Pursuant to the relevant provisions under unclos Part xii and related rules, preventive obligations with regard to land-based sources of plastic pollution are incumbent on the state in the territory of which the pollution source is located. In the case of sea-based pollution, they are incumbent on the flag state. States have an obligation to reduce and control pollution that occurs under their jurisdiction or control, and to prevent its spreading to other jurisdictions or areas.591

Acts or omissions contrary to unclos Part xii may result in damage purely within the jurisdiction of the respective state, transboundary damage and/or damage to areas beyond national jurisdiction. These three constellations have different implications with regard to the enforceability of unclos provisions: if pollution affects a neighbouring or other state, this state may react in one way or another, including through legal means. By contrast, cases of pollution in domestic areas or areas beyond national jurisdiction are very unlikely to entail any legal consequences at all. At least in the past, there has been a high reluctance of states to resort to the traditional means of enforcement in such cases. Yet, a few recent counterexamples possibly reflect a change in the interpretation and application of respective duties and may indicate the emergence of a different trend.592

1) Areas under National Jurisdiction

unclos defines a so-called baseline to delimit the internal waters of a coastal state. Internal waters include inland waters such as rivers, but also harbours, estuaries and bays.593 The first zone as defined by unclos beyond internal waters is the territorial sea of coastal states (unclos Part ii). The territorial sea is a belt of sea (including seabed, its subsoil, the water column and airspace) adjacent to the coast upon which the coastal state basically exercises full sovereignty.594 Full sovereignty implies ‘legislative and enforcement jurisdiction over all matters and all people in an exclusive manner unless international law provides otherwise’.595 Unlike in internal waters, ships of all states enjoy the right of innocent passage through the territorial sea.596 The zone may not exceed 12 nautical miles from the baseline.597 This first zone is bordered by a contiguous zone, which may not extend beyond 24 nautical miles from the baseline and allows the coastal state to exercise the control necessary to prevent and punish infringement of its laws and regulations within its territory or territorial sea.598

Beyond and adjacent to the territorial sea (thus including the contiguous zone), coastal states may claim their Exclusive Economic Zone (eez).599 The eez is regulated by unclos Part v and covers an area that extends up to 200 nautical miles from the baselines.600 In the eez, coastal states exercise sovereign rights ‘for the purpose of exploring and exploiting, conserving and managing the natural resources […] and with regard to other activities for the economic exploitation and exploration of the zone’.601 Similarly, coastal states have jurisdiction over the eez with regard to further issues, including marine scientific research and the protection and preservation of the marine environment.602 In particular, they have legislative and enforcement powers with regard to the conservation and use of living resources.603 Sovereign rights in the eez are exclusive; other nations need the express consent of the coastal state for engaging in any of these activities.604 In the eez, foreign states enjoy the freedoms of the high seas to the extent that these freedoms are not restricted by the coastal state’s sovereign rights under Part v of the convention.605 The eez comprises the water column, the seabed and its subsoil, as well as the airspace above the sea. With regard to the seabed, the provisions governing the continental shelf have to be taken into account.

The continental shelf is regulated in unclos Part vi.606 It is defined as ‘the seabed and subsoil of the submarine areas that extend beyond [the coastal state’s] territorial sea throughout the natural prolongation of its land territory to the outer edge of the continental margin’.607 Where the outer edge of the continental margin does not extend up to 200 nautical miles from the baseline, the continental shelf of a coastal state is expanded to 200 nautical miles through a legal fiction, even if geological conditions are different. If, on the other hand, the natural prolongation of the land territory exceeds 200 nautical miles, the continental shelf may also go beyond this limit.608 unclos Part vi attributes sovereign rights to coastal states over the continental shelf ‘for the purpose of exploring it and exploiting its natural resources’.609 Exploration or exploitation of the continental shelf and its natural resources by third states is subject to the express consent of the coastal state.610 In the exercise of its rights over the continental shelf, however, the coastal state must not unduly affect the rights and freedoms of other states.611

Maritime zones under national jurisdiction are thus either characterized by territorial sovereignty of the coastal state, which implies comprehensive jurisdiction ratione materiae and ratione personae, or by sovereign rights of the coastal state, comprising exclusive rights limited to the material scope as defined by law. Specifically, coastal states exercise territorial sovereignty over their internal waters and territorial sea and sovereign rights over their eez and continental shelf.612 In all these areas, coastal states do not only have jurisdiction with regard to the protection and preservation of the marine environment,613 but have a duty to adopt measures to this aim, including by adopting and enforcing corresponding legislation.614 This duty flows from Part xii and is a corollary of the sovereign rights they enjoy.

Figure 15
Figure 15
Maritime zones according to unclos
adapted from a picture by historicair, <https://de.wikipedia.org/wiki/Datei:Zonmar-en.svg>, accessed 19 February 2022, licensed under cc by-sa 3.0, <https://creativecommons.org/licenses/by-sa/3.0/deed.en> accessed 6 december 2021.
2) Areas beyond National Jurisdiction

Areas beyond national jurisdiction comprise the high seas and the deep seabed, the latter of which is known as the Area. The two zones are governed by two fairly different principles: the high seas, consisting of the water columns and airspace beyond the eez (or, in the event that a coastal state did not claim an eez, beyond its territorial sea), are governed by the principle of the freedom of the high seas.615 The Area (that is, the seabed beyond the continental shelves), on the other hand, is governed by the principle of the common heritage of mankind.616 The two principles represent different regulatory approaches with regard to the management of common spaces and common resources.

The high seas are regulated in unclos Part vii. While they are reserved for peaceful purposes617 and, as such, cannot be appropriated or occupied,618 the high seas and their resources, whether living or non-living, are open for use by all states, whether coastal or landlocked.619 The freedom of the high seas notably includes the freedom of navigation, the freedom of overflight, the freedom to lay submarine cables and pipelines, the freedom to construct artificial islands and other installations, the freedom of fishing and the freedom of marine scientific research.620 The principle implies, thus, a freedom of activities as permitted under international law, while granting the absence of national sovereignty over parts of the respective area. The driving force behind the concept is economic and political in nature and relates to the aim of securing strategic gains of maritime powers, especially with regard to commerce, in the whole sea.621 The freedom of activities as enjoyed by all states may, however, be restricted by treaty obligations and other duties under international law.622 Also, these freedoms may only be exercised with due regard for the interests of other states in their exercise of the freedoms of the high seas.623 The principle of the freedom of the high seas is complemented and operationalized by the principle of the exclusive jurisdiction of the flag state: the state that has granted a vessel the right to sail under its flag exercises both exclusive legislative and enforcement jurisdiction over it (and the people on board) while the ship sails on the high seas.624 The principle implies that it is the responsibility of the flag state to ensure that ships flying its flag comply with international law when engaging in activities in the high seas.625 This is also true with regard to rules related to plastic pollution from ships and dumping at sea.626

The regime of the high seas contrasts with the regime applying to the Area, which is regulated in unlcos Part xi: the deep seabed and its resources are defined as the common heritage of mankind,627 whereas the term resources refers to mineral resources only.628 Similar to the high seas, the Area is reserved for peaceful purposes629 and cannot be appropriated or occupied.630 In contrast to the regime of the high seas, however, the freedom of activities does not apply to the Area and its resources. The convention explicitly provides that activities in the Area shall be carried out for the benefit of mankind as a whole, while taking into particular consideration the interests and needs of developing states.631 Thus, while the resources of the high seas are freely exploitable (as long as in accordance with respective obligations under international law), states are not free to exploit the resources of the Area. Instead, resource exploitation in the Area is administered by the International Seabed Authority (isa) "International Seabed Authority (isa)", which acts on behalf of mankind as a whole.632 The tasks of isa include providing for ‘the equitable sharing of financial and other economic benefits derived from activities in the Area through any appropriate mechanism, on a non-discriminatory basis’.633 The Authority can also adopt rules, regulations and procedures for ‘the prevention, reduction and control of pollution and other hazards to the marine environment’ and ‘the prevention of damage to the flora and fauna of the marine environment’.634

The core elements of the principle of the common heritage of mankind include the principle of non-appropriation, the reservation for peaceful purposes and the principle of use for the benefit of mankind as a whole.635 Features such as (limited) international management, access and benefit sharing and the principle of sustainable development, which, arguably, are inherent to the concept, are among the particularities of the regime.636 Yet, the scope of the concept is geographically limited and becomes even more so with the ongoing extension of the continental shelves beyond the limit of 200 nautical miles – a process which continually reduces the area of the deep seabed. Also, the thematic scope of the concept, which is confined to mineral resources, further curtails the practical relevance of the concept.

While Parts vii and xi say little about the protection of the marine environment (beyond resource management) in these areas,637 the obligations of states arising from Part xii generally also apply to the high seas and the deep seabed.638 States do, for instance, have to take the necessary measures to ensure that pollution occurring in areas under their jurisdiction does not spread to the high seas or the deep seabed.639 States also have to enforce the laws and regulations they adopt in the discharge of their obligations under Part xii, including with respect to ships flying their flag on the high seas. With regard to activities in the Area, isa “International Seabed Authority (isa)” is the competent authority for the adoption of rules and regulations with regard to pollution prevention and environmental protection.

While the freedom of the high seas does not include a freedom to pollute (which would be against Part xii and related rules), it certainly includes the freedom to clean up plastic pollution, as long as this measure does not unduly restrict the freedoms of other states. Clean-up activities may form an important element of the range of measures that a state can take in order to fulfil its obligations under unclos Part xii, especially because pollution reduction is explicitly required. Yet, technology for the clean-up of marine debris at sea is still in its infant stage. This might be one out of several reasons why no argument for a duty of states to clean up plastic debris in the high seas (not to mention the deep seabed) has ever been made. Another such reason is certainly the lack of jurisdiction, which, arguably, is the corollary of environmental responsibilities. This further adds to the importance of prevention and the secondary role of pollution reduction in this field, especially in areas beyond national jurisdiction.

ii unclos Part xii: The Protection and Preservation of the Marine Environment

unclos Part xii comprises 46 articles and is structured into 11 sections. The first section contains a number of legal principles governing the Part xii regime. The principles were drafted in line with the language and spirit of Principle 7 of the 1972 Stockholm Declaration640 and other coeval documents.641 At the very outset of Part xii, it expresses in Article 192 a general duty of states to protect and preserve the marine environment. This duty is both the core and foundation of the global legal regime on marine plastic pollution mitigation. The current subsection sheds light on its normative content (2) and discusses the more specific obligations as contained in unclos Part xii (3). Before that, it takes a look at the convention’s definition of marine pollution and examines whether and to what extent marine plastic debris is covered by the term (1).

1) Definition of Marine Pollution

For the purposes of the convention, pollution of the marine environment is defined as

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, hazards to human health, hindrance to marine activities, including fishing and other legitimate uses of the sea, impairment of quality for use of sea water and reduction of amenities.642

This definition widely corresponds to the common understanding of the term.643 It contains three main elements that seem of particular relevance. It so goes from the definition that marine pollution usually involves elevated concentrations of substances in water, soil, organisms or other media within the marine environment. Such elevated concentration levels are generally referred to as contamination, respective substances as contaminants. The definition also points to the anthropogenic origin of pollution: the alteration in concentration levels has, hence, to be caused by human activities (‘introduction by man’). Finally, the definition shows that pollution involves any kind of negative or deleterious effects, for instance in the form of impaired use. High concentrations of substances in seawater do, thus, not necessarily mean that the water is polluted, even if the contamination was caused by humans. The water is, however, polluted if there are negative effects that can be associated with the contamination.

Common contaminants or potential pollutants include:

  1. biological substances (such as pathogenic microorganisms or invasive species);
  2. chemical substances (including petroleum hydrocarbons; persistent organic pollutants such as chlorinated hydrocarbons; inorganic pollutants, including heavy metals; endocrine disruptors; nutrients, especially nitrogen and phosphorus; sediment mobilization; and marine debris, including plastic litter);
  3. radionuclides from a variety of activities; and
  4. substances altering the physic-chemical properties of the sea water (due to a different pH, salinity or oxygen demand).644

The unclos definition also covers the introduction of energy (for instance in the form of heat from power plants) into the marine environment with potentially harmful effects, and possibly also noise.645

Importantly, the definition does not exclusively refer to negative effects on human activities and interests but refers in this respect to marine life in general.646 Also, it includes not only acts that actually result in negative effects to the marine environment but also acts that are ‘likely to result’ in such effects. The definition is thus not confined to an established cause–effect relationship but includes in its scope the introduction into the marine environment of substances or energy with potentially harmful effects.647 Implicitly, this definition refers to, and goes in line with, broader concepts such as risk evaluation, precaution and due diligence, which will be discussed later in this section.648

Marine plastic debris refers to objects or substances that are produced, used and disposed of by humans and find their way into the marine environment from different sources and through different pathways. They are directly or indirectly introduced by man into the marine environment.649 The debris has actual or potential harmful effects on all the categories as mentioned in the unclos definition of marine pollution: it damages marine wildlife and entire ecosystems, poses a risk to human health and safety, hampers maritime transport and other marine activities, adversely affects economic activities such as tourism and fisheries and reduces the cultural, aesthetic and amenity values of the marine environment to human society.650 Plastic debris thus clearly falls under the definition of marine pollution and into the scope of unclos Part xii.

2) General Obligations under unclos Part xii

The starting point and basis of unclos Part xii is the obligation of states to protect and preserve the marine environment (Article 192). Its normative content is informed by the subsequent articles of Chapter 1, but also by the more specific provisions contained in the other sections of Part xii. Deliberately worded in a broad and open way, unclos Article 192 clearly needs to be interpreted and applied in light of contemporary international environmental law.651 Recent case law and an advisory opinion issued by the itlos Seabed Disputes Chamber in 2011652 give particular attention to three elements in this respect: due diligence, environmental impact assessment, and precaution. Moreover, as the subject of marine environmental protection is also addressed by or closely related to the subject area of a number of other international legal instruments, the broader legal environment has to be taken into account, including with regard to related multilateral environmental agreements.653

Recent judgments show how the development of new instruments has influenced the evolution of the scope of unclos Article 192 and related provisions. Landmark rulings in this respect include, in particular, two arbitral decisions: the first involves a dispute between Mauritius and the United Kingdom regarding the establishment by the latter of a marine protected area around the Chagos Archipelago;654 the second is a case brought by the Philippines against the People’s Republic of China dealing with, among other things, environmental concerns in the South China Sea.655 Especially in the second case, the arbitral tribunal referred to a number of multilateral agreements in the interpretation of unclos provisions. Considering concerns of legal coherence and the principle of systemic integration, the current and subsequent subsections discuss the linkages between unclos environmental provisions and a number of related instruments.

a) The Text of the Convention

In presumably simple terms, Article 192 of the convention provides that ‘States have the obligation to protect and preserve the marine environment’. While the term marine environment is not explicitly defined in the convention, it clearly comprises all parts of the sea and the living and non-living resources contained therein, and cannot be confined to, for instance, parts under national jurisdiction or control.656 Remarkably, the provision is addressed to states rather than states parties to the convention, so that its scope of application seems to go beyond the treaty’s membership and include all the states. There are several possible interpretations to this choice of terminology, including that the duty to protect and preserve the marine environment reflects a customary rule or a general principle of international law.657

According to unclos Article 193, the duty to protect and preserve the marine environment as contained in Article 192 explicitly qualifies the sovereign right of states to exploit their natural resources.658 While the right of states to exploit their resources is confirmed in unclos, states, in the exercise of their right, need to weigh up purely economic interests against environmental concerns. Environmental considerations thus form a compulsory part of marine resource management by states. In this sense, unclos Article 193 implicitly refers to a balancing of interests as suggested by the concept of sustainable development.659 Article 193 is reminiscent of Stockholm Principle 21 and Rio Principle 2, both of which link the right of states to exploit their own resources to their ‘responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other states or of areas beyond the limits of national jurisdiction’. The unclos provision, however, shifts the emphasis from a negative obligation not to cause harm to a positive duty to protect and preserve the environment.660

unclos Article 194 reflects one of the core components of the duty to protect and preserve the marine environment. In its paragraph 1, it requires states (and not merely states parties) to

take […] all measures […] 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 to] endeavour to harmonize their policies in this connection.

It follows from the text that the adoption of three types of measures – namely to prevent pollution, reduce pollution and control pollution – constitutes a crucial element in the protection and preservation of the marine environment. Four issues as expressed in paragraph 1 are particularly striking in this regard: first, the provision does not prohibit pollution per se but, instead, requires states to take preventive and reactive measures. It does, therefore, not require a specific result, such as a pollution-free environment, but obliges states to take action, or adopt conduct, that leads towards a desired result. Second, reference in paragraph 1 to terms such as ‘best practicable means’, ‘at their disposal’ and ‘in accordance with their capabilities’ seem to qualify the request for states to take ‘all measures necessary’ to prevent, reduce and control pollution. Capability will thus be an essential issue in the determination of the exact nature and content of the duty to take measures to prevent, reduce and control pollution or to ensure not to cause harm to the environment beyond the areas under their jurisdiction. Third, the provision refers to any source of pollution. The inclusion of all pollution sources, including land-based and atmospheric sources, was a novelty at the time of adoption of the convention. Even today, unclos is still an exception among global environmental treaties in this regard. Finally, paragraph 1 indicates that harmonization of national policies plays a key role in global pollution prevention, reduction and control.

Paragraph 2 requires 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 the context of Article 194(2), the term activities mainly refers to the introduction of potentially harmful substances or energy into the marine environment, as expressed in the unclos definition of marine pollution.661 The provision does not necessarily include an absolute prohibition to introduce such substances into the marine environment. Rather, it obliges states to do their best efforts to ensure no such activities cause significant transboundary pollution.662 Among its procedural aspects, the rule involves an obligation of states to provide necessary information in order to assess the magnitude of transboundary harm and the causal link between a state’s activities and the harm.663

Article 194 paragraphs 1 and 2 slightly differ in focus and scope: paragraph 1 primarily aims at protecting the marine environment as such, independently from its social or economic value or any human uses. The provision therefore includes in its scope purely domestic pollution, as well as pollution caused to the global commons.664 By contrast, paragraph 2 arguably protects the interests of states in the first place. It specifically applies to transboundary contexts, in which activities in one state bear the risk of causing damage in another state or in an area beyond national jurisdiction. With regard to damages caused to other states, it might be argued that the norm is mainly bilateral in scope. Yet, in cases of damage caused to the environment of the high seas or the deep seabed, remedy must be open to third states. In this specific regard, the provision is erga omnes in character.665

The prescribed measures have to deal with all sources of pollution of the marine environment and to be designed to minimize to the fullest possible extent the release of toxic or harmful substances from land-based sources, from and through the atmosphere or by dumping, as well as pollution from vessels, mining installations or other installations at sea (paragraph 3). The measures taken in accordance with Article 194 must not unjustifiably interfere with other lawful activities in the marine environment (paragraph 4). The protection and preservation of ‘rare or fragile ecosystems as well as the habitat of depleted, threatened or endangered species and other forms of marine life’ is given special attention (paragraph 5).

Article 195 provides that in taking measures to prevent, reduce and control pollution of the marine environment, states have to make sure ‘not to transfer […] damage or hazards from one area to another or transform one type of pollution into another’. Also, states have to prevent, reduce and control pollution resulting from the use of technology or the introduction of new or alien species into parts of the marine environment (Article 196).

Sections 2–11 of unclos Part xii contain more specific obligations that form part of the duty to protect and preserve the marine environment. Part xii Sections 5 and 6 specify the obligation of states to take and enforce measures (especially laws and regulations) to prevent, reduce and control pollution of the marine environment from all different sources, including land-based. The two sections also address policy harmonization, as well as the establishment and implementation of global and regional rules and standards. Similarly important are the duties of states to cooperate as expressed in Part xii Section 2, as well as the duties related to technical assistance (Section 3), monitoring and assessment (Section 4), liability (Section 9) and compliance with other rules of international law (Section 11). These specific obligations are discussed in Subsection 3) below.

b) Systemic Integration and the Interpretation of Part xii: a Case Law Study

In the South China Sea Arbitration, the arbitral tribunal examined China’s compliance with its general duties under Part xii of the convention. It found that China breached its obligations under Article 192 and other provisions because of harmful fishing practices, harvesting of endangered species and the destruction of coral reefs through unsustainable artificial island building.666 In its analysis, the tribunal observed that the proper content of the obligation to protect and preserve the marine environment is ‘informed by the other provisions of Part xii and other applicable rules of international law’.667

The tribunal’s reference to other rules of international law in the interpretation and application of Article 192 conforms to a perceptible preference in international litigation of what has been called an integrated conception of international law over a fragmented one.668 It also conforms to the principle of systemic integration.669 According to the principle of systemic integration, international law obligations, whether treaty-based or other, form part of ‘some coherent and meaningful whole’, which is why they must be ‘applied and interpreted against the background of the general principles of international law’.670 The same principle suggests that ‘customary law, general principles of law and general treaty provisions form the interpretative background for specific treaty provisions’ and must be taken into account as such.671 Practical examples in which courts and tribunals refer to general norms of contemporary international law in the interpretation of specific treaty provisions, and environmental obligations in particular, are manifold.672

Courts and tribunals do, however, not only refer to general international law when interpreting specific rules and norms: in order to avoid potential conflicts of norms and ensure coherence between different legal obligations, they also often take account of other treaties and instruments applicable to the parties.673 The practice of placing a treaty into its legal environment accords with the principle of systemic integration and its specific reflection in Article 31(3)(c) of the Vienna Convention on the Law of Treaties (vclt). The article depicts a general rule of interpretation and provides that in the interpretation of a treaty instrument, ‘any relevant rules of international law applicable in the relations between the parties’ shall be taken into account. While the exact substantive and temporal scope of the rule is unclear and disputed, it clearly implies that courts and tribunals must interpret and apply a treaty in its relationship to its normative environment, even with regard to instruments over which they may not have jurisdiction in the respective case.674 In other words, systemic integration forms a mandatory part of the interpretation process related to norms and rules of international law.

The link to external sources, both general and specific, may be particularly useful for clarifying the ordinary meaning of terms used in a treaty and determining their object and purpose. It may provide evidence of what might be a common understanding by the parties. Instruments may be relevant in this regard even when they were adopted after the treaty the provisions of which are to be interpreted.675 This is especially true with respect to terms that are evolutionary in nature (that is, terms which the parties to the treaty did not intend ‘to have a fixed content regardless of the subsequent evolution of international law’).676 In such cases, the legal environment to be considered is the one that exists at the time of application, not at the time of adoption of the treaty. In this way, progressive developments can be taken into account. Evolutionary terms are common in provisions related to the protection of the environment. This is a dynamic field of regulation, as environmental concerns have been increasing and new scientific insights are provided at a fast pace.677 The regulatory density in this field has been increasing accordingly. Newer and more specific instruments may thus offer valuable clues to a meaningful and coherent interpretation of a term – one that reflects contemporary common values and the latest stage of scientific knowledge.678

Reference to General Norms of International Environmental Law in Legal Practice

Without mentioning the principle of systemic integration in explicit terms, the International Court of Justice (icj) repeatedly referred to general norms of contemporary international law in its interpretation even of old treaties. Two of the Court’s decisions are particularly interesting in this respect:

The Pulp Mills Case was decided in 2010 and deals with an environmental dispute between Argentina and Uruguay. In the case, Argentina claimed that the authorization and construction of two pulp mills by Uruguay on the banks of a shared watercourse were in violation of a statute that was adopted by the two countries in 1975. In its interpretation of the relevant provisions of the 1975 statute, especially the ones related to the prevention of transboundary pollution, the icj widely referred to contemporary rules of international environmental law. It held that the ‘obligation to adopt regulatory or administrative measures either individually or jointly and to enforce them is an obligation of conduct’,679 which is generally referred to as an obligation of due diligence. The Court made similar observations with regard to the specific obligation under the 1975 statute to prevent pollution and preserve the aquatic environment by prescribing appropriate rules and measures:

[It] is an obligation to act with due diligence in respect of all activities which take place under the jurisdiction and control of each party. It is 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.680

The Court recalled that it had recognized the principle of prevention (which it identified as an obligation of due diligence) as a customary rule in an advisory opinion issued in 1996.681 It further held that the obligation to protect and preserve, as addressed in the statute,

has to be interpreted in accordance with a practice, which in recent years has gained so much acceptance among States that it may now be considered a requirement under general international law to undertake an environmental impact assessment where there is a risk that the proposed industrial activity may have a significant adverse impact in a transboundary context, in particular, on a shared resource.682

The Court explained that

due diligence, and the duty of vigilance and prevention which it implies, would not be considered to have been exercised, if a party […] did not undertake an environmental impact assessment on the potential effects of such works.683

Finally, the icj acknowledged that the precautionary approach might be relevant in the interpretation and application of the provisions of the statute, even though this would not necessarily imply a reversal of the burden of proof.684 While in the judgment, the icj does not discuss it further, reference to the precautionary principle or approach is common in international and regional environmental treaties and other instruments. The most prominent reference may be found in the 1992 Rio Declaration on Environment and Development: Rio Principle 15 provides that in the event of threats of serious or irreversible damage, ‘lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation’. Rio Principle 15 also requires states to apply the precautionary approach widely according to their capabilities.

The Pulp Mills ruling suggests that today, due diligence with regard to the prevention of transboundary harm, the undertaking of environmental impact assessment and precaution form important elements of duties related to the protection of the environment and the sustainable management of shared resources. The Court’s findings in the case are highly relevant for the interpretation of unclos Part xii, as the obligation to protect and preserve the marine environment is inextricably linked with the principle of prevention. It notably includes the obligation to adopt ‘regulatory or administrative measures’, which the Court identified as an obligation of due diligence that implies, as the case may be, an obligation to undertake environmental impact assessment and to adopt precautionary measures.

The icj confirmed the conclusions reached in its Pulp Mills judgment in two cases between Nicaragua and Costa Rica that were jointly decided in 2015. In the Nicaragua/Costa Rica Cases, both applicants claimed that their respective neighbour state had violated international environmental law (Nicaragua by dredging of the San Juan River, Costa Rica by carrying out major route construction works along the same river). The parties accused each other of a breach of procedural and substantive obligations related to the prevention of significant transboundary environmental harm. The Court observed in this respect that

the fact that the 1858 Treaty may contain limited obligations concerning notification or consultation in specific situations does not exclude any other procedural obligations with regard to transboundary harm which may exist in treaty or customary international law.

In this vein, the Court addressed the procedural obligations to carry out an environmental impact assessment and to notify and consult, all of which were identified as customary rules. It also addressed the substantial obligation not to cause significant transboundary harm. Paraphrasing the Pulp Mills judgment, the icj described the latter as an obligation not of result but of due diligence, namely the obligation of a state ‘to use all the means at its disposal in order to avoid activities which take place in its territory, or in any area under its jurisdiction, causing significant damage to the environment of another State’.685 The Court also explained that the obligation to undertake environmental impact assessments is not confined in its scope to industrial activities (as the wording in Pulp Mills might suggest) but ‘applies generally to proposed activities which may have a significant adverse impact in a transboundary context’. It concluded in this respect that

to fulfil its obligation to exercise due diligence in preventing significant transboundary environmental harm, a State must, before embarking on an activity having the potential adversely to affect the environment of another State, ascertain if there is a risk of significant transboundary harm, which would trigger the requirement to carry out an environmental impact assessment.686

The findings by the icj have been supported and confirmed by other tribunals, including in maritime contexts: in an advisory opinion issued in 2011, the itlos Seabed Disputes Chamber identified due diligence, environmental impact assessment and precaution as important elements for the discharge of unclos Part xi obligations. The advisory opinion was rendered at the request of the Council of the International Seabed Authority in response to three questions related to the legal responsibilities and obligations of states under unclos and its implementing agreement with respect to the sponsorship of activities in the Area. In this context, the Chamber found that the obligation ‘to ensure’ – to which it also referred as an obligation ‘of conduct’ and of ‘due diligence’ – is an obligation ‘to deploy adequate means, to exercise best possible efforts, to do the utmost, to obtain this result’.687 As an example of such an obligation of due diligence, the tribunal explicitly referred to unclos Article 194(2).688 It moreover noted that ‘the obligation to conduct an environmental impact assessment is a direct obligation under the [Law of the Sea] Convention and a general obligation under customary international law’.689

In its general observations on due diligence and environmental impact assessment, the Seabed Disputes Chamber closely followed the icj’s main argument in Pulp Mills and the comments by the International Law Commission (ilc) in its 2001 Draft Articles on Prevention of Transboundary Harm from Hazardous Activities.690 With regard to the content of due diligence, the Chamber went an important step further by asserting that the precautionary approach formed an integral part of due diligence obligations. It explained that the due diligence obligation to prevent damage also applied ‘in situations where scientific evidence concerning the scope and potential negative impact of the activity in question is insufficient but where there are plausible indications of potential risks’.691 It specifically pointed out that a disregard of these risks would amount to a failure to comply with the precautionary approach and the obligation of due diligence. In the view of the Chamber, Rio Principle 15 and reference to it in a growing number of international treaties reflect ‘a trend towards making this approach part of customary international law’.692

Valuable clues about the interpretation of unclos Part xii are offered by the South China Sea Arbitration, a case decided by an arbitral tribunal in 2016. The case is outstanding as it contains a rather detailed analysis of the obligation to protect and preserve the marine environment under unclos. In the case, the Philippines alleged that China violated its obligation to protect and preserve the marine environment by conducting harmful fishing practices and harmful construction activities. In its legal analysis, the tribunal directly drew on the observations by the icj in Pulp Mills and the Seabed Disputes Chamber in its 2011 advisory opinion.693 It fully applied the respective conclusions with regard to prevention, due diligence and environmental impact assessment to the obligations under unclos Part xii. By contrast, the tribunal did not have to address questions related to the precautionary approach, considering the amount of scientific evidence that had been provided to it with regard to the devastating and long-lasting effects of the activities by China or under China’s control.

The tribunal observed that the obligation under Article 192 extended ‘both to “protection” of the marine environment from future damage and “preservation” in the sense of maintaining or improving its present condition’.694 It further noted that the provision entailed ‘the positive obligation to take active measures to protect and preserve the marine environment, and […] the negative obligation not to degrade the marine environment’.695 It recalled in this regard that ‘Articles 192 and 194 set forth obligations not only in relation to activities directly taken by States and their organs, but also in relation to ensuring activities within their jurisdiction and control do not harm the marine environment’.696 Finally, the tribunal confirmed the importance of cooperation and environmental impact assessment in the context of unclos Article 192 and related obligations. It identified the failure by China to cooperate and to undertake an environmental impact assessment (or to deliver assessment results) with regard to activities that bore an obvious risk of causing significant and harmful effects to the marine environment as a breach of respective obligations.697

The Role of Related Treaties on Environmental Protection

In the Chagos case, which was decided in 2015, Mauritius challenged the establishment by the United Kingdom of a marine protected area (mpa) around the Chagos Archipelago, sovereignty over which is claimed by both states.698 The arbitral tribunal analysed the compatibility of the mpa and its establishment with relevant obligations under unclos. The case involved, among other things, a clash of environmental considerations on the one side with social or economic considerations on the other side. Specifically, Mauritius claimed that the declaration of the mpa infringed on Mauritian fishing rights in the territorial sea. In this respect, the case touched on questions related to the conservation and sustainable use of living resources. The tribunal notably observed that the obligation of the United Kingdom to protect and preserve the marine environment extended to measures focused primarily on conservation and the preservation of ecosystems. As a consequence, the establishment of the mpa could potentially be justified even if Mauritian fishing rights were infringed. The tribunal’s assertions illustrate the importance it accords to ecosystem protection and conservational issues. Given the specific situation of the Chagos Archipelago, however, the adoption of a measure such as the declaration of an mpa would have required meaningful consultation and cooperation with Mauritius – a requirement that the United Kingdom failed to fulfil.699

The South China Sea Arbitration deals with strongly related issues. It is a showcase for systemic integration through a living interpretation and application of unclos Part xii. Although the tribunal did not explicitly refer to Article 31(3)(c) of the Vienna Convention, its interpretation of unclos Articles 192 and 194 was guided and informed by principles and standards as they are defined in other conventions. The tribunal recalled that, in the light of unclos Article 237, the obligation to protect and preserve the marine environment must be interpreted by reference to the subsequent provisions of Part xii and ‘to specific obligations set out in other international agreements’.700 In line with this observation, the tribunal made full use of such references in its interpretation of the general obligations under Part xii.

The tribunal’s examination is remarkable in that it clearly depicts the importance of ecosystem protection, conservation of endangered species and sustainable use of living resources of the sea in the protection and preservation of the marine environment. The tribunal recalled the finding by itlos that ‘[t]he conservation of the living resources of the sea is an element in the protection and preservation of the marine environment’.701 It gave particular attention to Article 194(5) in this respect. The provision sets out an obligation to take the measures 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’. According to the tribunal, the wording of this provision confirms that in order to fulfil the obligation to protect and preserve the marine environment, measures may be required that go beyond simple pollution control.702

In order to determine the full scope of Article 194(5) and the terms used therein, the tribunal particularly referred to the Convention on International Trade in Endangered Species of Wild Fauna and Flora (cites)703 and the cbd. Specifically, it referred to cbd Article 2 in the determination of what consists a (rare and fragile) ecosystem, and to the cites annexes with regard to the question whether a targeted species is generally qualified as threatened or endangered.704 Given the fact that the two instruments are nearly universally ratified (including by China and the Philippines), the tribunal did not find it necessary to analyse whether there is precise congruence between the membership of unclos and these treaties. Instead, it pointed out that cites and the cbd contain ‘internationally accepted definitions’ of relevant terms, as well as standards forming ‘part of the general corpus of international law that informs the content of Article 192 and 194(5)’.705

With due regard to recent developments in international law related to the conservation and sustainable use of living resources, as reflected in the cbd and other instruments, the tribunal gave new emphasis to conservation issues in the interpretation of Article 192. Taking account of the scientific evidence before it, it acknowledged that the duty to protect and preserve the marine environment nowadays necessarily includes the due diligence obligation to prevent the harvesting of species that are ‘recognised internationally as being at risk of extinction and requiring international protection’, especially in the context of fragile ecosystems. It moreover follows from the tribunal’s considerations that harm to the marine environment ‘as such’ may be sufficient for constituting a breach of the obligations under Part xii, regardless of whether any country suffered a measurable loss.706

Interim Conclusions

A contemplation of the above-discussed cases provides important guidance on how to interpret and apply unclos Part xii obligations. It also points out the key elements of the obligation to protect and preserve the marine environment. Interpretation of Article 192 and related provisions in the light of contemporary international environmental law strongly suggests that:

  1. the obligation to protect and preserve the marine environment, as provided by Article 192, is an obligation of due diligence, the content of which is informed by the other provisions of Part xii and other applicable rules of international law;
  2. to fulfil its obligation to exercise due diligence in protecting and preserving the marine environment, a state must ascertain if there is a risk of significant environmental harm related to its planned activities, which would trigger the requirement to carry out an environmental impact assessment;
  3. in cases of scientific uncertainty with regard to the potential negative impact of such activities, precaution is an increasingly relevant factor in the determination whether preventive obligations have been duly fulfilled.

The relevant provisions moreover suggest that the obligation to protect and preserve the marine environment is an obligation of conduct, which notably includes:

  1. the obligation to take regulatory and other measures necessary to prevent, reduce and control pollution of the marine environment, as provided by Article 194, with due regard for the conservation and the preservation of ecosystems (national implementation);
  2. the obligation to cooperate at different levels of governance and to provide assistance (global and regional cooperation); and
  3. the obligation to comply with other conventions and take the legal environment into account (coherence).

3) Specific Obligations and Their Relevance to Plastics

The general duty of states to protect and preserve the marine environment is specified in Part xii Sections 2–11. Elements include the adoption and enforcement of laws and regulations; differential treatment; precaution; monitoring and environmental impact assessment; global and regional cooperation and technical assistance; and compliance with other conventions.

a) The Adoption and Enforcement of Laws and Regulations

According to Article 194(1), national implementation of the obligation to protect and preserve the marine environment requires the adoption of national measures – legislative, administrative and other – to prevent, reduce and control pollution of the marine environment from any source, including land-based. Rather than specifying the content of the measures to be taken or the precise level of protection to be achieved, unclos uses a mechanism of reference to international standards established in other fora. The rules of reference can be seen as a major strength of the regime. They allow for the incorporation of standards, where they exist, that regulate various aspects of marine pollution, including, for instance, those related to the regulation of hazardous substances, waste disposal or the management of international watercourses.

Prevention, Reduction and Control

Among the threesome of pollution prevention, reduction and control, prevention seems of paramount importance. It can be seen as a primary duty under unclos Part xii.707 While there evidently is a partial overlap in meaning with respect to the three terms, pollution prevention clearly refers to source reduction and thus tackles marine pollution at its roots. With regard to plastics, prevention especially encompasses measures related to:

  1. the sound management of resources and wastes, including waste-reduction measures, improved collection, increasing recycling quantity and quality, safer disposal (no unprotected dumping sites along the coasts etc.);
  2. sustainable production and consumption, including with regard to consumption rates, especially of single-use plastics and other disposables, non-recoverable plastics such as plastic microbeads, non-recyclable compounds, and materials leaking persistent organic pollutants into the soil, water, human body or other environments;
  3. the safe regulation of chemicals, including persistent organic pollutants and endocrine disruptors in plastics; and
  4. the regulation of packaging quantity and materials or product designs.

In the event that preventive measures are, for any reason, not reasonable, effective or sufficient, measures must also be taken for pollution reduction and control.708 Pollution control most usually refers to so-called ‘end-of-pipe solutions’ serving to isolate contaminants from the environment.709 Control measures are necessary to deal with potentially harmful substances the discharge or release of which can hardly be avoided and that are likely to enter the marine environment in hazardous quantities if not properly controlled. According measures include, for instance, the prescription of filter systems for the removal of plastic particles and, if possible, plastic microfibres, from waste water and sewage.

Pollution reduction mainly refers to the reduction of anthropogenic contaminants in the environment through clean-up activities. Reduction measures are necessary with regard to substances that have been introduced into the marine environment in the past and, if not removed, are likely to persist there for an indefinite period of time and cause damage to humans or the environment. The collection of floating or beached plastics would fall under this term.

Some guidance with regard to the measures that states shall take can be found in Part xii Section 5 (international rules and national legislation)710 and Section 6 (enforcement).711 In these sections, unclos explicitly distinguishes between five sources of marine pollution: (1) land-based sources; (2) seabed activities;712 (3) dumping; (4) vessels; and (5) the atmosphere. Part xii Sections 5 and 6 contain specific provisions for each of these types of sources and thus add more detail to the general provision of Article 194. The provisions reflect Rio Principle 11, expressing the duty of states to enact effective environmental legislation.713

General Mechanism of Reference

The convention does not specify the content of the laws and regulations to be adopted by states, or define any minimum level of protection that states should apply. In particular, it does not include a list of prohibited substances.714 Instead, the convention refers to relevant ‘internationally agreed rules, standards and recommended practices and procedures’ that may contain more specific requirements with regard to the content of the measures to be taken and the level of protection to be applied. In this respect, the provisions, especially of Section 5, are unconventional in that they define the relations between national laws and regulations on the one hand and international ‘rules, standards and recommended practices and procedures’ on the other hand. Specifically, the provisions lay down the degree of conformity with the international rules and standards required on the national level.715

Specifications with regard to the national measures and their relation to international rules and standards vary according to the type of pollution sources. The differences are especially due to non-uniform language with regard to the reference to international standards: for most sources, including seabed activities, dumping and vessel-based pollution, clear preference is given to internationally agreed rules and standards.716 The preference is reflected in three aspects:

  1. 1.States have to establish global and regional rules and standards to prevent, reduce and control pollution of the marine environment from seabed activities or vessels.717
  2. 2.States have to adhere to the international rules and standards in the adoption of national legislation and other measures.718
  3. 3.States have to adopt laws and regulations and take other measures necessary to implement and enforce applicable international rules and standards established through competent international organizations or diplomatic conference to prevent, reduce and control pollution of the marine environment from these sources.719

With this mechanism, unclos incorporates international standards that were agreed under the auspices of competent organizations, for instance the International Maritime Organization (imo),720 or within other fora. These standards serve as minimum standards, while allowing states to choose a higher level of protection, with stricter standards.721 One of the strengths of the use of reference standards is that the regime can evolve more easily, as standards can be re-examined and regularly adjusted to changing conditions, including knowledge increase or technological developments. The mechanism of incorporation by reference thus allows for a more dynamic evolution of the regime. It is also crucial for the convention’s role as a global framework on marine environmental protection. At the same time, the unclos system promotes a minimum harmonization of rules with regard to these pollution sources at the international level: through their incorporation by unclos, standards such as contained in the annexes to marpol722 or the London Dumping Convention723 can possibly become binding on states that have never ratified these conventions. System wide and consistent application within the unclos regime may provide a basis for their customary status.724

The Particular Case of Land-based Pollution Sources

With respect to land-based pollution sources, the wording is weaker. Article 207(1) provides that

States shall 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’.725

States shall moreover take ‘other measures as may be necessary to prevent, reduce and control such pollution’726 and ‘endeavour to harmonize their policies in this connection at the appropriate regional level’.727 States do not have a strict obligation to establish global rules, standards and recommended practices but shall endeavour to establish them, ‘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.728 Similar wording was used with regard to pollution from atmospheric sources, though without reference to different capacities and re-examination of standards.729

Article 213 finally provides that states shall enforce their laws and regulations adopted in accordance with Article 207 and shall adopt laws and regulations and take other measures necessary for the implementation of relevant international rules and standards.730 Article 213, like any other provision under Section 6, is subject to the safeguards provisions in Section 7.731

The weaker formulation in Article 207 (‘taking into account’) leaves states wider discretion in national implementation than they have with regard to other sources of pollution, except for atmospheric pollution.732 It is important to note, however, that the freedom of states in choosing their level of protection is not absolute: the wording of Article 207(1) and related provisions does not allow states to take no action but obliges them to take preventive and other measures in good faith. Article 207(5) moreover provides that laws and regulations ‘shall include those 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’. The provision indicates that persistency is an important factor in the classification of substances, and in the determination of toxic, harmful or noxious substances in particular. Plastics are clearly covered by the provision, given their harmful effect on marine life and ecosystems, their tendency to contain or accumulate pollutants and their high degree of bioinertness and persistence.

The difference in reference and the greater leeway given to states with respect to land-based sources might be due to the fact that at the time when unclos was negotiated and adopted, no agreement had been reached yet on how to best address land-based sources of marine pollution. The reasons are manyfold:

  1. Low awareness: The first global scientific assessment on the effects of specific substances on the marine environment was published in 1982.733 The significance of land-based pollution was only recognized in the 1990 report.734 Awareness of the scale of negative impacts of marine plastic debris and their relation to land-based activities is much more recent. The global character of marine plastic pollution had not yet been recognized when unclos was adopted.
  2. Complexity: Land-based pollution involves a high number of substances, actors and activities, which implies complex policy choices. This is true for plastics, too: the materials are used in nearly all industry sectors and for a broad range of social activities. Actors involved in the life cycle of plastics range from the petrochemical industry to machine manufacturers, recyclers and waste management companies.
  3. Regional differences: Policy preferences highly depend on the geographic, ecological and economic situation of a state. A low level of development and high poverty are restraining factors in the adoption and implementation of effective environmental regulation. If not strongly incentivized, concerned countries might not readily engage in the development of high international standards.735
  4. Economic concerns and national sovereignty: Finally, international regulation of land-based pollution sources, and the development of a respective legal framework, has long been hampered by fears of interference in domestic affairs and of inhibiting effects on industrial development. The regulation of relevant sectors, including industry, agriculture, forestry and household, is a most sensitive issue, which is often put under the protective shell of national sovereignty.736 Under unclos, land-based pollution sources and pathways, ‘including rivers, estuaries, pipelines and outfall structures’737 fall within the exclusive jurisdiction of the coastal state.738

States remained reluctant to regulate land-based sources even after the adoption of unclos. No such reluctance existed with regard to dumping at sea or vessel-based pollution: regulation in this aera developed at a much faster pace, especially under the auspices of imo.739 Unlike for other pollution sources, unclos does not impose a hard obligation on states to adopt such standards for land-based sources. To date, therefore, there are largely only non-binding instruments at the global level that deal with prevention and mitigation of land-based sources of pollution – and plastics in particular. Nevertheless, relevant environmental agreements are increasingly including provisions that relate to plastic pollution mitigation, especially in the chemicals and waste sector.740 Furthermore, in certain marine regions, regional agreements have been adopted that are, in principle, able to specify and supplement the provisions in unclos.

The Role of Regional Rules and Non-binding Instruments

The regime under unclos on land-based sources of pollution thus has two special features: First, with few exceptions, there is a lack of global, legally binding plastics-specific rules and standards. Existing instruments are mostly non-binding or regional in character. In this context, the question arises whether such instruments are covered by Articles 207 and 213 at all. Secondly, the reference to these instruments is weaker, at least in Article 207. This raises the question of whether there is a difference in impact when compared to other pollution sources.

Article 207 seems to take account of a broad range of instruments by referring to ‘internationally agreed rules, standards and recommended practices and procedures’. The list clearly covers regional conventions on the protection and preservation of the marine environment and their protocols on land-based sources. Article 207(4) particularly refers to the establishment of regional rules and standards and allows states to take into account characteristic regional features. Regional rules and standards are thus meant to be taken into account by the states concerned.741 If such rules provide suitable solutions for other regions, too, respective countries may well take them into consideration. The more regions share a specific approach to land-based sources and enshrined it in a convention or protocol, the more the respective rules must be considered to be internationally agreed in the sense of unclos Article 207(1).742

The list of instruments in Article 207 potentially also covers non-binding instruments, including Chapter 17 of Agenda 21, the gpa, the Honolulu Strategy and sdg 14.743 In Article 213, on the other hand, a more restrictive formulation is used. The provision provides that, in order to prevent, reduce and control pollution of the marine environment from land-based sources, states:

shall adopt laws and regulations and take other measures necessary to implement applicable international rules and standards established through competent international organizations or diplomatic conference.744

The scope of Article 213 is confined to rules and standards and does not, in contrast to Article 207, refer to recommended practices and procedures. This supports a more restrictive interpretation, assuming that instruments that were not intended to be binding on states and have never been formally ratified would fall, if at all, into the category of recommended practices and procedures. Neither Article 213 nor any of the provisions under Section 6 covers this category of instruments. This interpretation finds further support in the fact that Section 6 consistently refers to applicable international rules and standards, which seems to confine the scope of the provisions to rules and standards the state concerned is clearly bound to.745 Reference to international rules and standards implies that corresponding rules form part of treaties that have been subject to widespread ratification or are widely accepted as customary rules.746 Such rules have to be established through either competent international organizations or a diplomatic conference. The term diplomatic conference most usually refers to plenipotentiary conferences involving state representatives, which includes unea.747

The role of standard-setting institutions, especially the imo (former imco), was widely discussed during unclos negotiations.748 Yet, the travaux preparatoires do not provide final clarification with regard to the meaning that was attached to the term ‘applicable international rules and standards’ by the drafters of the convention. In a case decided in 2014, the icj acknowledged that resolutions by the International Whaling Commission (iwc), even though non-binding in nature, may be relevant for the interpretation of the International Convention for the Regulation of Whaling (icrw)749 when they were adopted by consensus or by a unanimous vote.750 The Court also referred to guidelines issued by the commission as a supplementary means of interpretation in order to confirm the meaning it gave to a specific treaty provision.751 However, the Court rejected Australia’s assertion that iwc resolutions lacking the support of some iwc members, especially the defendant party, are to be seen as a subsequent agreement between the parties to the interpretation of the relevant provision, or a subsequent practice establishing such an agreement, within the meaning of vclt Article 31(3)(a) and (b), respectively.752 When reversing the Court’s argument, vclt Article 31(3)(a) suggests that non-binding instruments may be relevant for the interpretation of a provision as a ‘subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions’ if it has been supported by all the parties.

In light of these arguments, it can be concluded that:

  1. 1.With few exceptions, there is a lack of global binding instruments on land-based pollution sources, and plastic pollution in particular;
  2. 2.most of the non-binding instruments are covered by the formulation in Article 207: states are thus obliged to take them into account in the adoption of national measures;
  3. 3.non-binding instruments do not generally meet the higher threshold of Article 213: states do therefore not have a strict obligation to adopt the measures necessary to implement them;
  4. 4.if, however, the instruments have been endorsed by all the parties, a case can be made for their applicability within the context of vclt Article 31(3)(a).
  5. 5.Regional conventions are covered by both provisions, at least with regard to their parties.

The question of how the weaker wording in Article 207 affects its regulatory content is difficult to assess. Arguably, the combination of the absence of sufficient global rules and standards on land-based sources of marine pollution and the priority unclos Part xii gives to national regulation in this field results in a regime in which there is little international control with regard to the most problematic type of pollution sources.753 Only by the incorporation of plastic-specific instruments, whether directly or by reference, the convention can give sufficient guidance on the content of the measures to be taken or the level of protection to be applied. Only plastic-specific instruments can give effective content to the general provisions under Section 1 of Part xii.754 Without the effective incorporation of such instruments, the regulatory framework with respect to land-based sources is largely confined to customary obligations to which unclos does not add much of substance. At best, unclos promotes the implementation of relevant instruments by its call on states to take them into account in the adoption of national measures. It possibly also promotes harmonization of national rules and policies, even if the convention’s actual impact in this regard is difficult to evaluate. Only if the incorporation of specific standards on land-based sources of pollution can be significantly strengthened, either through better implementation or through the further adoption of binding rules, unclos may provide a sufficient framework for the protection of the marine environment from land-based pollution sources or for achieving a sustainable ocean management and the 2030 Agenda for Sustainable Development.

b) Due Diligence and the Differentiation of the Standard of Care

In order to fulfil its obligations under Part xii, a state is obliged to act with due diligence and care. It is required to use ‘all the means at its disposal’755 and ‘to exert its best possible efforts to minimize the risk’756 by applying the degree of care that can be expected of a ‘good government’.757 The concept of due diligence results in a rather wide policy space for states in the choice of their implementing measures.

Variation in the Standard of Care as a Form of Differential Treatment

As due diligence obligations do not require a specific result in the first place but efforts to be taken towards such a result, the concept of due diligence allows for graduation in the scope of effective commitments – or in the standard of care. Graduation in this context means that the degree of expected care, or of what is considered ‘reasonably appropriate’,758 depends on the capabilities of the state in question. unclos Article 194(1) directly refers to this characteristic element of due diligence by stipulating that for the purpose of the provision, states should use ‘best practicable means at their disposal and in accordance with their capabilities’.759 A state’s capabilities with regard to the respective obligation depend on available financial means, technologies and knowhow, but also governance structures and other factors, including policy constraints.760 Most evidently, states with a well-developed economy, abundant financial and other resources and sound governance structures are expected a higher standard of care than countries under less favourable conditions.761

Graduation in the standard of care is a typical feature of due diligence obligations and can be seen as a form of (implicit) differential treatment.762 Yet, in the context of unclos Article 194, this does not imply that basic implementation is conditional on a certain level of economic development. While the economic level of a state is one of the factors to be taken into account in determining whether the state has complied with its obligation, it cannot be used as an argument to fully exempt a state from the corresponding obligation.763 Regardless of its level of development, a state is obliged to use available means and infrastructure (‘at their disposal’) in good faith to control and monitor activities, especially hazardous activities, within its territory or under its control.764 In doing so, states should use ‘the best practicable means’, and thus have to take into account scientific and technological advances and keep up with these developments to the best of their ability.765

With regard to plastics, the greatest challenge for many countries remains waste collection. If to be provided or supervised by the state, effective waste collection requires a solid infrastructure (including streets, trucks, bins etc.), minimal governance structures and a lot of money. Especially in rural or sparsely populated areas, or in conflict zones, these conditions are hardly met. In some countries, more than half of the wastes therefore remain uncollected.766 Sorting for recycling and safe disposal are further challenges. The construction and maintenance of both sanitary landfills and incineration plants are costly, which is why most of the wastes are dumped or stored in poorly managed landfills. From there, they easily enter the waterways and marine environments. Poor waste management often comes along with widespread poverty, poor infrastructure, poor sanitation, low education and a wide range of related hurdles that tend to mutually aggravate each other as part of a vicious circle. Given these circumstances, positive change is extremely difficult to achieve. In the context of due diligence, states concerned are not expected to apply the same measures and solutions as high-income countries. However, they have to investigate other solutions more suitable to their case. Such solutions may include the integration of the informal waste picking and recycling sector into the formal economy. It may also include a stricter regulation of plastic materials or specific products at a different stage of their lifecycle, for instance at the stage of production or import, retail or use.

The Role of International Standards

International standards play a crucial role in the determination of the standard of care with respect to a state’s duty to take all necessary measures to prevent, control and reduce pollution of the marine environment. According to the ilc, such standards ‘constitute a necessary reference point to determine whether measures adopted are suitable’.767 In the context of graduation and differential treatment, reference standards have to be agreed internationally and cannot solely reflect standards as applied by, for instance, high-income countries. It is acknowledged in Rio Principle 11 that environmental standards, as applied by some countries, may be ‘inappropriate and of unwarranted economic and social cost’ in others.768 In view of the principle of non-discrimination, countries that choose a high domestic standard are, however, expected to apply it also to their activities abroad or activities with extraterritorial effects.769

The development of international standards, and their implementation, forms an integral part of the duty of prevention. It may also be seen as a prerequisite for policy harmonization in this regard, which is requested by unclos Article 194(1). The development of such standards requires mutual support, and support of low-income countries by higher-income countries in particular.770 Countries will only agree on specific standards if they have, or if they are granted, the means to implement them. Capacity-building schemes and the transfer of technology and financial resources therefore play an important role in the development of uniform standards.

Even if standards are not duly adjusted, changing conditions may influence the degree of expected care. According to the itlos, due diligence is ‘a variable concept’, one which may ‘change over time as measures considered sufficiently diligent at a certain moment may become not diligent enough in light, for instance, of new scientific or technological knowledge’.771 While its responsiveness to changing conditions may be considered an advantage, the concept of due diligence does not provide further guidance with regard to the expected level of protection and the content of the measures to be taken by states.772 The concept of due diligence cannot, therefore, compensate for the regulatory deficiencies with regard to land-based pollution sources.

The Role of Assistance and the (Non-)Applicability of cbdr

In unclos Part xii, reference to capabilities and according flexibility in the standard of care comes along with the obligation of (developed) states to provide scientific, educational, technical and other assistance to developing states773 and the explicit intention for developing countries to be granted preference by international organizations in the allocation of funds.774 Of course, the provision of assistance by developed countries ideally entails an increase of the means at the disposal of those countries benefitting from the support. Similarly, technology and knowhow transfer may open up new opportunities for pollution prevention and control. Hence, the provision of assistance to countries in need of support may influence the standard of expected care. This does not, however, imply that developing countries only have to implement the provision if such assistance is provided. In this sense, the principle of common but differentiated responsibilities (cbdr)775 does not apply to unclos Part xii obligations if cbdr means that implementation is conditional on the provision of financial assistance and transfer of technology by developed states.776

While affirming a common responsibility of all states for the protection of the environment, the concept of cbdr explicitly recognizes different contributions of developed and developing countries to global environmental degradation and acknowledges their different capacities for adaptation and mitigation measures. In view of these differences with regard to responsibilities and capacities, cbdr allows for different standards for developed and developing states. Also, developed countries have to provide assistance to developing countries if they wish the latter to implement the standards.777 With regard to the applicability of the principle of cbdr to the obligations under unclos Article 194, several issues have to be taken into account.

First, marine pollution, and marine plastic pollution from land-based sources in particular, is a global problem to which, arguably, some countries have contributed much more than others. Hence, it seems reasonable to argue that the main contributors should bear the main responsibility for it and support affected countries accordingly when they are suffering from beached debris, especially if we assume that the debris was generated elsewhere. However, studies show that main contributors are not necessarily developed countries in the traditional sense but include China, Indonesia, the Philippines, Vietnam, Sri Lanka and other middle- and low-income countries.778 As explained above, marine pollution from land-based sources is often linked to inadequate waste management, which, in turn, is usually due to limited capacities of municipalities and local governments. The principle of cbdr can thus hardly be applied in its strict sense, since contribution and capability – as the two elements at the basis of differentiation in responsibility – do not match.

Second, core obligations of Article 194(1–2) are pollution prevention and the prevention of transboundary harm. The provision clearly focuses on each country’s own responsibilities. In contrast to global environmental degradation that, in the past, has been mainly caused by developed countries, domestic pollution and transboundary harm are attributable to the state that caused the pollution or harm by its activities and failed to prevent it.779 cbdr does therefore not apply, at least with respect to the aspect of conditionality.780

c) Risk Evaluation and Precaution

The standard of care to be applied in the context of unclos Part xii does not only depend on a country’s capabilities but also on the severity of the risk and of hazard involved. The itlos held in this respect that ‘[t]he standard of due diligence has to be more severe for the riskier activities’.781 Risk assessment therefore plays an important role in the discharge of the obligations under Part xii, especially with regard to pollution prevention and ecosystem protection. For the purpose of the convention, pollution is defined as the ‘introduction […] of substances […] into the marine environment, […] which results or is likely to result in such deleterious effects as harm to living resources and marine life, hazards to human health [etc.]’.782 In order to fulfil its obligations as contained in Article 194, a state must thus assess whether and to what degree a substance is, in whatever form, susceptible of being introduced into or otherwise ending up in the marine environment, and whether or not its introduction into the marine environment is likely to result in deleterious effects. This goes beyond measuring real and actual effects and includes an anticipatory element, namely the assessment or evaluation of potential impacts that are likely to occur. In the event that risk of significant harm is to be expected (‘likely to result in such deleterious effects’), states have a duty to take all measures necessary to prevent, reduce and control the introduction of the corresponding substances into the marine environment.

When a risk assessment is carried out and a certain degree of risk is asserted, a state has to decide on how to deal with that risk.783 This decision depends on the chosen level of protection of a state and the standards it adopts, as well as on other factors such as available means, policy priorities and cost-efficiency of possible measures. According to Article 194, a state is not free in choosing its level of protection but has to strive for the highest level possible within the limits of its capabilities and take all measures necessary to prevent marine pollution. For this purpose, it has to ‘take into account’784 internationally agreed minimal standards and use the best practicable means at its disposal. Best available technology and best environmental practices as defined in different fora can be used as a reference to determine whether a state exercises due diligence and care with regard to the prevention and mitigation of marine pollution.

According to the ilc, the risk of causing significant transboundary harm refers to the combined effect of the probability of occurrence of harmful effects and their magnitude. It includes ‘risks taking the form of a high probability of causing significant transboundary harm and a low probability of causing disastrous transboundary harm’.785 Objective determination of such a risk is based on scientific criteria. Where there is scientific proof of a risk of significant environmental damage by pollution, measures need to be taken. However, both the probability of certain effects to occur and the magnitude of potential hazard involved are parameters that are not necessarily easy to assess or to prove. They depend on a multitude of factors, not all of which can clearly be determined.786 Sometimes, risk assessment results are ambiguous and experts do not agree about the degree of risk a certain activity involves. In such cases, it might not be possible to provide full scientific proof before harm occurs. Situations of scientific uncertainty (in which there are reasonable grounds to assume a threat of harm but the risk cannot be fully scientifically proved in a timely manner) have been receiving increasing attention in contemporary international environmental law, and are usually linked with precaution.787

In general, the duty of diligent control and regulation arises if significant harm is foreseeable and the risk of causing such harm can be objectively determined. In this respect, the precautionary approach implies that states are entitled, if not obliged, to take preventive measures even if a risk of significant788 harm cannot be fully proved by scientific means. Applying a precautionary approach does not rule out scientific criteria from policymaking or rule-making processes. Scientific evidence is still the basis of risk evaluation. However, a precautionary approach lowers the standard of proof of risk (or, as the case may be, reverses the burden of proof): even if full scientific certainty cannot be provided, or if there are divergent views in this regard, preventive measures may be justified. In other words: the lack of full scientific certainty with regard to the severity of a risk may not justify inaction if, based on scientific evidence, a threat of significant harm can be assumed.789 With regard to unclos Article 194, this means that the conduct of a state may be considered in breach of the state’s obligation of due diligence if the state did not properly evaluate a risk according to its capacities or decided not to take measures to encounter a risk of serious pollution on the sole ground that this risk was not fully scientifically proved. Precaution thus suggests that the failure to adopt sufficient preventive measures may not be justified by the lack of full scientific evidence and may be considered a breach of the due diligence obligation if a risk of significant damage could be presumed.790

There is no lack of scientific evidence with regard to a wide range of harmful effects caused by marine plastic debris. The focus of the states’ risk assessments must therefore lie on the probability of plastics to enter the marine environment. If there is high probability of plastics entering the marine environment, measures need to be taken to lower or eliminate that risk. Such measures can include moving landfills away from the coast, requiring beach resorts to collect waste, or disincentivising the use of single-use plastic and non-recyclable plastics.791 Precaution may be relevant for issues related to nanoplastics, the exact impact of which is still disputed, or the use of certain additives, including substances with potentially endocrine-disrupting properties.

d) Monitoring and Environmental Impact Assessment

A further component of the general duties to protect and preserve the marine environment and to prevent pollution, including from land-based sources, consists of the undertaking of prior environmental impact assessments and environmental monitoring. Environmental impact assessment has been defined as an ‘examination, analysis and assessment of planned activities with a view to ensuring environmentally sound and sustainable development’792 or as ‘a national procedure for evaluating the likely impact of a proposed activity on the environment’.793 The aim of such an assessment is not only to anticipate possible impacts on the environment but also to propose ways to prevent or minimize them.794 Ideally, assessment results provide the necessary information for states to properly evaluate the risks involved in a specific activity. Based on the assessment results, states are in a better position to decide whether and to what degree precaution is indicated. Environmental impact assessments allow for proper integration of environmental concerns into decision-making processes and therefore facilitate law and policy formulation in the context of sustainable development.795 Best available options can in this way be identified among different alternatives.

From a substantive point of view, environmental impact assessments are an important instrument for the prevention of damage by pollution and, thus, for states to fulfil respective duties. From a procedural point of view, they provide a suitable (and usually necessary) basis for a meaningful notification and consultation process with states that are potentially affected by envisaged industrial and other activities. In this vein, the assessments play an important role with respect to a state’s duty to cooperate.796 Yet, the relevance of environmental impact assessments is not confined to interstate relations. In domestic contexts, they may be indispensable for compliance with human rights law, especially with regard to the rights of access to environmental information, public participation in environmental decision-making and access to justice in environmental matters. Environmental impact assessment studies provide for the necessary transparency in this regard.797 The nature of the duty to undertake environmental impact assessment may vary according to the context. Its customary nature is most evident for transboundary contexts and contended with regard to impacts to the global commons and purely domestic effects.798

Environmental impact assessments are usually carried out ex ante, that is, at the planning stage of a project or proposed activity or in the drafting phase of new regulations, plans or policies. However, due diligence of states does not end with the start of a project or activity. Rather, states have to thoroughly measure and evaluate the effects on the environment during the whole term of an activity, and possibly beyond it. The process of measuring environmental impacts after the start of an activity is generally referred to as monitoring.799

unclos Part xii Section 4 contains three articles that deal with monitoring, assessment and reporting. Article 206 provides that:

When States have reasonable grounds for believing that planned activities under their jurisdiction or control may cause substantial pollution of or significant and harmful changes to the marine environment, they shall, as far as practicable, assess the potential effects of such activities on the marine environment and shall communicate reports of the results of such assessments in the manner provided in article 205.800

Article 205 provides that

States shall publish reports of the results obtained […] or provide such reports at appropriate intervals to the competent international organizations, which should make them available to all States.

The obligation to undertake an environmental impact assessment, as expressed in Article 206, is not an absolute one but contains several elements of discretion on the part of the state concerned. First, the term ‘reasonable grounds’ implies that for the duty to be triggered, there has to be an element of foreseeability with regard to the pollution that might be caused by the activity.801 Second, only substantial pollution or significant changes to the marine environment fall under the scope of the provision.802 Third, even when states have reasonable grounds for believing that there is a risk of substantial pollution or significant changes to the marine environment, they only have to assess potential effects ‘as far as practicable’. The decision on whether an assessment is practicable is largely left to the state’s own discretion and principally depends on its capabilities.

The scope of the provision is moreover confined to activities. While the term is not clearly defined, it typically refers to the construction and operation of factories, plants, streets, dams and other facilities potentially involving significant impacts on (shared) resources. Large irrigation or deforestation projects are also covered. The term equally refers to the issuance of corresponding construction permits and operating approvals to private actors. Domestic environmental impact assessment requirements may go further than that and also apply to, for instance, public procurement, free trade agreements or investment treaties. The 1991 Espoo Convention and, more importantly, its 2003 Protocol on Strategic Environmental Assessment (sea)803 break with the traditional approach that limits the scope of environmental impact assessments to activities or projects. In contrast to unclos Article 206, the sea Protocol applies to plans and programmes and, in a more limited way, to policies and legislation.804

Finally, Article 206 does not specify the required content or documentation of impact assessments.805 The duty to communicate assessment reports, however, is an absolute obligation.806 Again, the Espoo Convention goes further in this regard: its Appendix ii describes the minimum information that should be contained in the environmental impact assessment documentation. Such information includes, among other things, a description of the proposed activity and its purpose; a description of reasonable alternatives (including no action); a description of the potential environmental impacts of the project and alternatives; possible mitigation measures; knowledge gaps and uncertainties; and an outline for monitoring and management programmes.807

In addition to assessing impacts of planned activities, states have to monitor the effects of ongoing activities. For some activities, such as landfilling, monitoring may be required even a long time after the activity has been terminated. Article 204(1) provides in this respect that states shall ‘endeavour, as far as practicable, […] to observe, measure, evaluate and analyse, by recognized scientific methods, the risks or effects of pollution of the marine environment’. Article 204(2) specifies that states shall, in particular, ‘keep under surveillance the effects of any activities which they permit or in which they engage in order to determine whether these activities are likely to pollute the marine environment’. Again, the language of the article leaves considerable discretion to the state concerned. It is, for instance, not perfectly clear what kind of specific measures the term surveillance refers to.808 In any case, the place in which the activities are carried out and the nationality of the individual or entity undertaking the activity are not relevant for the purpose of Article 204 if the state is engaged in or has permitted the activity.809

Proper environmental impact assessment, monitoring and reporting are important factors in determining whether a state has fulfilled its obligation to protect and preserve the marine environment with due diligence. It will be difficult for a state to prove compliance with its general duties under unclos Part xii if it failed to undertake impact assessment and to correctly monitor its activities.810

With respect to marine plastic pollution, the provisions of unclos Part xii Section 4 are particularly relevant with regard to state-controlled activities relating to the extraction and production of raw materials for plastics, pellet production and transport, converting, recycling and the disposal of plastic wastes. Especially with regard to disposal activities and waste management, municipalities often play an important role. Environmental impact assessments may form part of the regular building application process, spatial planning and other administrative procedures. By contrast, activities that are not directly controlled by the state (and do not require its explicit permission) do not fall under the scope of Section 4. This includes the bulk of activities related to the use and disposal of plastics. Moreover, while point sources of plastic pollution, such as landfills and production facilities, can be relatively easily assessed in terms of environmental impacts, the same is not true for non-point sources. In fact, the concept of environmental impact assessment is difficult to apply to widespread plastic consumption and disposal practices, at least in a direct sense. It can, however, be applied to laws and regulations that regulate consumption and disposal behaviours. Life-cycle assessments of plastic products and packaging are a valuable tool in this regard: by evaluating environmental impacts of plastics in specific applications accross their entire life cycle, they provide key information for sustainable policy choices and decision-making in government procurement and legislative processes.811

In this vein, the scope of the unclos provisions is unsatisfactory, as it does not include laws, regulations, policies and programmes. The provisions do not directly require states to assess their regulatory framework and strategies and, thus, to continually optimize their effect on activities of privately owned companies and individuals. However, since much of marine plastic pollution is due to behavioural failures, regulatory measures and market-based instruments are important to provide incentives and disincentives in order to bring about desired behavioural change.812 A requirement for states to assess the impacts of respective policies, laws and other measures and to regularly report the results could be a useful component of an effective regime for the prevention of marine plastic pollution.

e) Cooperation and Assistance
Global and Regional Cooperation

unclos Section 2 on global and regional cooperation may be seen as an expression of the underlying understanding that the protection and preservation of the marine environment cannot be achieved by individual states alone, but has to be based on common efforts, while taking into account different views, values and conditions. The South China Sea case perfectly shows the extent of damage that can be caused to the marine environment when a state refuses to effectively cooperate in the protection and preservation of the marine environment and fails to fulfil respective obligations under Part xii of the convention.813 The significance of effective cooperation in the protection of the environment has been repeatedly stressed by international courts and tribunals. Most prominently, itlos held that ‘the duty to cooperate is a fundamental principle in the prevention of pollution of the marine environment under Part xii of the [Law of the Sea] Convention and general international law’.814

The convention’s Section 2 and related provisions are one of the novelties of unclos: not only did unclos introduce a general duty for states to protect and preserve the marine environment; it was also the first global instrument to stipulate a firm duty to cooperate in this regard and to define relevant aspects of this duty. In spite of the use of some qualifying terms, the provisions are formulated as strict obligations and to be implemented in good faith.815

According to unclos Article 197, states have a duty to cooperate on a global basis and, as appropriate, on a regional basis in developing international rules, standards and recommended practices and procedures for the protection and preservation of the marine environment. They may do so directly or through competent international organizations. Particularly relevant in this regard are the imo and the Food and Agriculture Organization of the UN (fao). Both organizations have been serving as important fora for cooperation and the definition of international standards in treaties and soft law. With respect to plastics and marine debris, unea (through UN Environment) would seem a suitable forum for international legal standards to be set. Regional cooperation, on the other hand, is mainly realized in the context of UN Environment’s Regional Seas Programme and related programmes.816 unclos Article 197 explicitly provides that states have to take into account characteristic regional features in the formulation and elaboration of common rules.817

unclos further provides that, in the event of imminent or actual damage to the marine environment, states have an obligation to immediately notify the states ‘likely to be affected by such damage, as well as the competent international organizations’.818 The obligation to notify is considered a rule of customary law.819 States in areas affected by imminent or actual damage and the competent international organizations have to cooperate ‘in eliminating the effects of pollution and preventing or minimizing the damage’. To this purpose, states ‘shall jointly develop and promote contingency plans for responding to pollution incidents in the marine environment’.820 The duty to cooperate in the event of imminent or actual damage is qualified by the reference in Article 199 to the respective capabilities of states concerned.

A duty to cooperate is also expressed with regard to studies, research programmes and exchange of information and data acquired about pollution of the marine environment.821 Finally, cooperation is required for the establishment of ‘appropriate scientific criteria for the formulation and elaboration of rules, standards and recommended practices and procedures for the prevention, reduction and control of pollution of the marine environment’.822 These obligations are highly relevant to marine plastic debris and microplastics: a lack of detailed knowledge and data has been repeatedly identified with regard to quantities, exact sources and pathways of micro- and macroplastics, as well as with respect to their degradation, distribution and impacts, including on human health. In its Resolution 2/11 on Marine Plastic Litter and Microplastics, unea therefore encouraged ‘the establishment of a harmonized international size definition and terminology and compatible standards and methods for the monitoring and assessment of marine plastic debris and microplastics’.823 The use of common scientific criteria is, in fact, a prerequisite for a common understanding of the problem and of possible solutions. The same is true with regard to criteria measuring the performance and effectiveness of governance structures and specific practices.824

With regard to enclosed or semi-enclosed seas, unclos Part xii Section 2 is supplemented by Article 123. The provision requires states bordering an enclosed or semi-enclosed sea to endeavour to coordinate management, conservation efforts and research. Other obligations that are not directly covered by Section 2 but closely linked to it include, for instance, the duty to undertake environmental impact assessments as provided by Article 206.

Technical Assistance

Mismanaged wastes are one of the most important sources of marine plastic debris from land. According to a study published in 2015, the mass of mismanaged plastic wastes would decrease by 41 per cent within ten years, if the 20 most polluting countries (that is, the biggest contributors to marine plastic pollution from land-based sources) doubled their rates of adequate waste disposal.825 Twelve of these countries are low- or lower-middle-income countries. Seven of the 20 top-ranking countries are upper-middle-income economies. The United States is the only high-income country to be on the list, ranking twentieth.826

A significant reduction of mismanaged wastes, especially in low- and middle-income countries, is of paramount importance for achieving a reduction in global plastic input into the marine environment. In order to tackle the problem, improvement of waste collection systems and infrastructure in these countries is therefore essential. Yet, the respective countries face a wide range of challenges, including a lack of financial resources, technologies and knowhow. At the same time, they are extremely vulnerable to the negative impacts of marine plastic pollution, especially if their coastal populations are not sufficiently protected against negative health impacts or if their economies rely on fishing and tourism. Rapid improvement of waste management infrastructure is inconceivable without the support of high-income countries.

Much like in other fields of environmental protection, effective participation of developing countries in global efforts to protect and preserve the marine environment depends on support provided by developed countries. Without such support, developing countries often lack the necessary means for effectively engaging in common programmes and activities and implementing jointly agreed standards. It is an essential component of the principle of cooperation in a (global) partnership as referred to in Rio Principles 7 and 27.827 Hence, unclos Section 3 on technical assistance complements the previous section on global and regional cooperation.

The section is to be read in conjunction with the general obligations as contained in the first section of Part xii. In fact, the duty to protect and preserve the marine environment does not exclusively refer to domestic activities, including with transboundary effects, but includes extraterritorial components. The duty to provide technical assistance is one of these components. It is closely related not only to the notion of intragenerational equity, but also to the notion that the state of the marine environment is a matter of common concern of humankind. In this sense, the duty to protect and preserve the marine environment is incumbent upon the international community as a whole. The duty of a state to protect the marine environment therefore includes a duty to support less-developed countries in the fulfilment of their obligation.

Specifically, Article 202 deals with the provision of scientific and technical assistance to developing states for the protection and preservation of the marine environment and the prevention, reduction and control of marine pollution. While the obligation to provide such assistance is formulated as a strict one, states are only obliged to ‘promote programmes of scientific, educational, technical and other assistance to developing States’.828 Article 202(a) provides a list of specific forms of assistance that shall be promoted. Appropriate assistance shall also be provided for the minimization of damage to the marine environment caused by ‘major incidents’829 and for the preparation of environmental assessments.830 The term appropriate gives states a considerable discretionary space in their decision on the type and degree of assistance they intent to provide.

Article 203 deals with preferential treatment for developing states. It stipulates that developing states shall be provided preference by international organizations with regard to the allocation of marine pollution funds and technical assistance and with regard to the utilization of the specialized agencies of respective organizations. Indirectly, the provision is addressed to the member states of these organizations: they are called on to distribute available funds according to the needs of states, with the developing states having priority. The term developing countries is not defined in unclos, but seems to be used according to the criteria established by the UN.831 None of the provisions of Section 3 affects the general responsibility of the developing states for applying the substantive rules of Part xii.832

Overall, the obligations under Part xii Section 3 are deliberately open worded. The section gives states considerable discretionary space in their decision on the form and degree of assistance they intent to provide. It does not prescribe financial support or refer to any financial mechanism such as the gef. Also, it does not provide the institutional basis for concerted action in this regard. This is despite the fact that the need for technology transfer, capacity building and financial support for developing countries in relation to plastic pollution mitigation is widely undisputed.833

f) Compliance with Other Conventions

unclos Article 237 governs the relationship between Part xii and other conventions and agreements. It is considered a lex specialis with regard to Article 311 on the general relation between unclos and other treaties.834 By virtue of Article 237, special conventions and agreements have priority over the more general provisions of unclos Part xii as long as they are compatible with its general principles.835

Article 237 is consistent with the rules of treaty interpretation in general international law, including vclt Article 31(3)(c) and the principle of systemic integration.836 It can be seen as a corollary to the mechanism of reference by which unclos incorporates internationally agreed rules and standards dealing with the prevention and control of marine pollution from different sources.837 In this sense, the obligation to protect and preserve the marine environment includes an obligation to take other relevant instruments into account and implement corresponding duties to the extent that they are applicable and compatible with unclos Part xii.

As a rule of conflict, Article 237 plays an important role with regard to the continuous evolution of the unclos framework and its relation to other treaties and bodies of law. A revision of unclos provisions is nearly inconceivable and would, if envisaged, probably take several years or decades of negotiations. Against this backdrop, the further development of related international rules and standards by the competent authorities, and their incorporation by unclos, allows the convention to adjust to new conditions and developments more easily.838

The relevance of a number of international agreements, and their relation to Part xii, will be discussed in Sections C and D below. Besides these agreements, regional conventions for the protection and preservation of the marine environment seem particularly important for the purposes of unclos Article 237. Especially in view of the protracted regulatory standstill with regard to land-based pollution sources at the global level, regional conventions may have the potential to fill the gap. Whether and to what extent they do so will be discussed in Chapter 2.2 below.

Interim Conclusions

Along with its general provisions on the protection and preservation of the marine environment, unclos provides for a comprehensive framework setting out valuable principles for action to be taken at the national, regional and international levels. Specifically, it requires states to adopt laws and regulations and take other measures at the national level, to assess environmental impacts and monitor activities, to effectively cooperate at the regional level, to provide assistance to developing countries, and to establish global rules and standards to prevent marine pollution and harmonize policies in this regard. unclos moreover offers a set of useful features, including its mechanism of reference allowing for the incorporation of international standards and, as discussed below, its dispute settlement system.

With regard to land-based sources of marine pollution, unclos does not give clear priority to international standards over national regulations. In addition, states have been very reluctant to adopt binding regulations on land-based sources in the past. Although states also have to take non-binding instruments into account when adopting national mitigation measures, the exact content of the obligations under unclos remains blurred and the level of protection to be achieved is not defined. This is a difficult hurdle to overcome, including for the enforcement of unclos Part xii obligations in a plastics-related context. Against the background of the continuing and rapid increase of plastics in the marine environment, clearer goals and requirements are needed to abate them effectively and in a timely manner. The status and impact of such requirements can be strengthened through the reference mechanism in unlcos.

iii Compliance and Enforcement: The Challenges of Plastics

Before addressing a number of challenges related to plastic pollution and the enforcement of unclos Part xii, the present subsection provides a brief overview of the legal setting regarding the international responsibility of states and liability for damage. In a third part, it explains the unclos dispute settlement system and its relevance to plastics.

1) The Legal Framework

unclos Part xii Section 9 refers to the rules related to the responsibility and liability for damage caused to the marine environment. In a nutshell, Article 235 confirms the applicability of the international law on state responsibility and liability and, at the same time, serves as a safeguard provision to accommodate later developments in this field.839 It also requires states to ensure that recourse is available for prompt and adequate compensation ‘in respect of damage caused by pollution of the marine environment by natural or juridical persons under their jurisdiction’.840 It does not, however, give any clarification with regard to a number of unresolved issues and challenges inherent to the current international law of responsibility and liability.841 With regard to plastic pollution, such challenges relate, in particular, to the diffuse, dispersed and accumulative nature of the problem.

If damage is caused by the breach of an international obligation, liability becomes an essential feature of the obligations that arise from the wrongful act (or omission) under the law of state responsibility. However, damages may occur even if there is no act or omission contrary to international law. Such damages include, for instance, the ones associated with hazardous but lawful activities, including the operation of power plants, the shipping of oil or the transport of other hazardous substances. Liability is, therefore, not a concept that is confined to states. Under the realm of civil liability, other actors, including private operators, can be held liable for the damages they cause.

There are different sets of rules that are relevant in this regard:

  1. The first set of rules concerns the responsibility and liability of a state (or, alternatively, of an international organization) in breach of an international obligation. Besides customary rules, the ilc Draft Articles on Responsibility of States for Internationally Wrongful Acts as adopted in 2001 play an important role in this regard.842 In 2011, they were complemented by the ilc Draft Articles on the Responsibility of International Organizations.843
  2. The second set of rules, or principles, deals with liability for damage arising from acts not prohibited by international law. The ilc has been active in this field, too. Its Draft Articles on Prevention of Transboundary Harm844 define a certain minimum standard of due diligence for states in the management of activities posing a risk of significant transboundary harm. When transboundary harm occurs even though states comply with the required degree of due diligence, the question of compensation for damage falls outside the scope of state responsibility. Regulation in this field was widely unclear until recently. Only in 2006 did the ilc adopt a set of draft principles applying to such cases.845 They establish a regime of liability for transboundary damage and specify the duties of states in this regard. It is important to note in this respect that state practice does not, in general, suggest that states are liable in the absence of fault.846
  3. In addition to the ilc Draft Principles, there are a number of special, treaty-based schemes, including sectoral, on state and civil liability in international law dealing with the compensation for damage arising from specific activities that are generally considered as hazardous or ultra-hazardous. All these rules of international law are, of course, supplemented by national and regional liability systems.847 In the absence of contrary rules in international or regional treaties, national liability regimes are often the only ones to potentially cover cases of purely domestic damage.

Whether and to what degree liability regimes apply to a case depends on their design: in regimes based on strict liability, the occurrence of damage associated with a specific activity may be enough to trigger liability of some of the actors involved. By contrast, this would not be the case in a fault-based regime. In such a regime, a state or private operator is only liable for wrongful acts or omissions. Subjective elements (such as intention or recklessness) may be required in addition to the objective elements of a wrongful act.

In the context of environmental disputes in international law, the term fault usually refers to the failure of a state to act with due diligence (or to duly discharge procedural obligations, including to cooperate), which, in principle, is enough to trigger the state’s responsibility.848 While, thus, depending on the applicable rules, subjective elements of a fault may be required (or not!) for a state or private actor to be held liable, they play a minor role with respect to the international responsibility of a state. Most environmental treaty regimes, including unclos Part xii, do not provide for strict liability: if a state acts with the required degree of diligence, it cannot be held liable for damage under the convention.849

2) The Challenge of Plastics

Plastic pollution of the oceans poses a number of particular challenges with regard to the enforcement of unlcos Part xii provisions. These challenges become apparent when we imagine the case of large-scale plastic accumulation in the coastal waters and beaches of a specific country, causing a broad range of negative externalities. Not only do local communities have to bear the clean-up costs; it might well be also the case that many families and local businesses suffer a considerable loss of income or profit, respectively, because fishing has become more difficult and tourists do no longer come to that beach. In addition, a wide range of marine species, including endangered species, are severely affected through entanglement, ingestion and habitat pollution. Finally, local communities feel that there is a considerable health risk from the plastics due to the contamination of fish and physical injury. Because of these adverse effects, the people concerned wonder:

  1. a.whether the plastic pollution in their region can be associated with a breach of unclos Part xii by their own country or any other country;
  2. b.whether the countries in breach of their obligation can be held responsible for it; and
  3. c.whether compensation is available to people living close to that beach and being affected by the pollution.

a) Whether There is a Breach of the Duty to Protect and Preserve the Marine Environment

The first challenge relates to the question of which state the pollution is attributable to. Marine debris mostly consists of fragmented pieces, many of which will have lost their original properties, including colour, shape or possible inscriptions. Proofing their origin is a difficult task. Plastic pollution from land-based sources, such as inadequate waste management, typically accumulates in domestic areas in the first place, including river deltas and domestic shores. This is especially true for urban or tourist areas close to the coasts. However, pollution may also originate in upstream, possibly landlocked, states, and be transported by rivers to the shores of downstream states. Besides, marine plastic debris is easily transported to other shores, even of remote countries, or to the global gyres, which mostly form part of the high seas. The geographic location of some countries, including (but not only) some island countries, is such that ocean currents continuously wash ashore high amounts of plastic fragments from remote places. Marine plastic pollution from land-based sources is therefore generally not attributable to the actions or inactions of any single state or operator.

This difficulty is aggravated by the fact that sources of marine plastic pollution on land are widely continuous and dispersed, such as laundry and tyre wear. Marine plastic pollution is a problem to which nearly all the countries are contributing in a continuous way, although to different degrees. Hence, it can be argued that there is a shared responsibility by the international community. At best, contributions can be estimated to the extent that relevant data is available. In this respect, marine plastic pollution is comparable to the issue of climate change, the loss of biodiversity and similar concerns in that it is connected to a collective action problem.

Even if the pollution could be traced back to a single state, it would not be clear whether it constituted a violation of obligations under international law. Most usually, the actual polluters are private actors involved in the production, transport, use and disposal of plastic products, or products containing microplastics. As described in the previous subsection, there is a breach of the duty to protect and preserve the marine environment in the sense of unclos Article 192 when a state does not make use of its regulatory competence to prevent, reduce and control marine pollution with the diligence due, or when it fails to duly discharge its procedural obligations, inclusidng its obligation to cooperate. Although unclos refers to international rules and standards to better identify necessary regulatory and other measures to prevent plastic input into the ocean, the exact content of the duty under Articles 192 and 194 remains vague.850 The question of compliance with a due diligence obligation largely depends on the standard of care and thus on the capacities of a specific state. A second challenge is hence related to the variable nature of due diligence obligations, in particular with regard to the standard of care.

The obligation to prevent transboundary environmental harm traditionally relates to hazardous activities.851 Transboundary movement of lower-quality, mixed and contaminated plastics is considered a hazardous activity subject to international regulation.852 The duty to protect and preserve the marine environment, however, goes beyond the prevention of transboundary harm and potentially includes an obligation to address a broad range of activities that are not traditionally considered hazardous, but relate to normal production, use and disposal of plastics and plastic goods.853 The risk associated with the production, use and disposal of plastics is a cumulative one. Corresponding damage is caused by an extremely large number of activities and actors, the contribution by each of which is little and uncertain.854 The ilc acknowledges that claims are not commonplace in the event that harm occurs because of gradually accumulated adverse effects over a period of time. They are not commonplace because it is difficult in these cases to establish a causal link between the (hazardous) activity and the damage incurred.855 This significantly adds to the unsettled character of the case.

Lastly, there is the question of threshold environmental damage must take in order for the responsibility of a state to be triggered. Under general international environmental law, the scope of application of the duty to prevent transboundary environmental damage is generally confined to activities involving a risk of causing significant transboundary harm.856 unclos Articles 192 and 194 do not, however, refer to any sort of qualifying factor with regard to the threshold of environmental damage. The wording of the provision suggests that the threshold question is less relevant in the context of due diligence, as respective obligations are obligations of conduct, and not of result.

Both risk and damage related to marine plastic pollution are difficult to quantify. While the effects of entanglement and ingestion are widely known and recognized, the exact impacts of micro- and nanoplastics perhaps seem less evident, and further research is required. Further research is also required with regard to chemical contamination, bioaccumulation and -magnification, and impacts on human health, but also with regard to the spread of invasive species facilitated through plastic debris, and related threats to marine ecosystems. The precautionary principle is, thus, highly relevant in this context. Moreover, plastic pollution may be one out of several causes for a gradual decrease in fish stocks, along with overfishing, climate change and other causes, the cumulative effect of which is difficult to foresee. Traditional enforcement mechanisms, as available under unclos, typically struggle to deal with cases in which damage is not quantifiable or financially assessable.857

Overall, the question whether wide accumulation of plastics in the marine environment is related to a breach of unclos Part xii obligations cannot be answered in a general way and depends on the specific case. The main challenges in this regard are related to:

  1. the identification of a single state to which the pollution is attributable;
  2. the establishment of a causal link between causes and effects, especially with regard to diffuse sources and cumulative effects;
  3. the determination of the standard of care with respect to marine plastic pollution mitigation in the absence of binding international standards; and
  4. the quantification of environmental, social and economic damage related to marine plastic pollution.

b) Whether the Countries in Breach of Their Obligation Can Be Held Responsible for It

The principle of state responsibility is tailored to interstate constellations in which the acts or omissions of one state cause injury to another state or a group of states.858 In the case of coastal plastic pollution, such a transboundary constellation is conceivable. In the commentary to its Draft Articles on State Responsibility, the ilc specifically refers to the case of pollution of the high seas in breach of unclos Article 194. It holds that such pollution ‘may particularly impact on one or several States whose beaches may be polluted by toxic residues or whose coastal fisheries may be closed’, in which case the respective states can be considered injured by the breach.859 The affected state would have to proof that the plastics were introduced into the marine environment by activities under the jurisdiction or control of the allegedly responsible state. It would moreover have to establish a causal link to significant damage.860 So far, no state has brought a claim against another state for transboundary plastic pollution in marine environments.

Acts or omissions contrary to unclos Part xii may not only result in transboundary damage, but could result also in damage purely within the borders of the respective state or damage to areas beyond national jurisdiction, including the high seas and the deep seabed. Both domestic areas and areas beyond national jurisdiction are covered by unclos Part xii, especially its Article 194.861

According to the ilc Draft Articles on State Responsibility, states are entitled to act in the collective public interest in protection of fundamental values shared by a group of states to which they are party, or, as the case may be, of values deemed of universal significance.862 In the case of a multilateral treaty regime established in protection of a collective interest, each party to that treaty has the right to enforce the obligations arising from the treaty vis-à-vis other parties, even if it has not suffered any direct form of damage. Similarly, remedy is also open to states in the event that the obligation breached is owed to the ‘international community as a whole’. Respective obligations include erga omnes customary obligations such as the duty to protect and preserve the marine environment.863

It is to be noted that the relevant ilc Draft Article depicts a progressive development of the law of state responsibility that, though widely accepted in literature,864 is not so much reflected in state practice yet. The icj acknowledged the existence of obligations of a state towards the international community as a whole in its Barcelona Traction judgment of 1970. According to the Court, such obligations are, by ‘their very nature […] the concern of all states’. Also, the Court held that ‘[i]n view of the importance of the rights involved, all States can be held to have a legal interest in their protection; they are obligations erga omnes’.865 Since then, the concept has gained importance in human rights law and humanitarian law.866 In at least two cases decided by arbitral tribunals, public interest standing has been granted in contexts related to the protection of the marine environment to enforce rules applicable to all the parties to an agreement.867 The South China Sea case is the first example of a public interest claim referring to unclos Part xii.

The general reluctance of the states to take action against other states is probably greatest when the damage mainly affects areas under the territorial sovereignty of the non-compliant state. In spite of the international obligation at stake, such situations are often treated as an internal affair of the polluting state. International responses to ‘domestic’ actions with no extraterritorial effects are confined to a number of gross infringements of values that are ‘deemed of universal significance and not derogable by States’.868 They can be found in cases related to human rights law, humanitarian law and international criminal law.

International practice suggests that states, when acting in a public interest and on behalf of the community, tend to do so through institutional bodies, such as UN bodies, other international organizations, treaty bodies or human rights bodies. Especially within the context of multilateral treaty systems, responses to a violation of treaty obligations are most usually decided by the Meeting of the Parties or other treaty bodies with supervisory powers. Individual responses rarely go beyond diplomatic protests.869 If, however, they involve measures with potential impact on international trade, such measures have to be consistent with respective rules as adopted under the auspices of the wto.870

Overall, there are numerous hurdles associated with state responsibility claims, whether in terms of the burden of proof or political reciprocity in interstate relations. In the law regulating specific aspects of marine pollution, states thus often fall back on special liability regimes. These usually focus on the polluter, including private operators, and hence provide a valuable alternative to state responsibility claims.871

c) Whether Compensation Is Available

A certain risk of causing damage is inherent to many ordinary, though potentially harmful activities, whether industrial, commercial or other. Liability addresses the question of compensation, including for damage caused by lawful activities.872 Such activities are often not attributable to the state, and states are usually unwilling to be held liable for damage caused by these activities.873 On the one hand, state compensation for losses caused by hazardous activities would imply that the risks associated with hazardous activities and their financial consequences could be transferred to the state. This could be seen as a dubious subsidization of hazardous activities and an incentive for operators to accept higher risks, taking advantage of possible grey areas of national regulations – a result that is inconsistent with the polluter pays principle and hardly compatible with the aim and purpose of environmental legislation. On the other hand, there is also no good reason why the loss should be borne by the victims of the damage, or by the state where the victims live. None of these possibilities would, in any way, be consistent with the polluter pays principle.874

For these reasons, the ilc came up with a different approach to liability for transboundary damage. In 2006, it adopted its Draft Principles on the Allocation of Loss.875 According to the principles, ‘each State should take all necessary measures to ensure that prompt and adequate compensation is available for victims of transboundary damage caused by hazardous activities located within its territory or otherwise under its jurisdiction or control’.876 Notably, such measures should include ‘the imposition of liability on the operator or, where appropriate, other person or entity’. The ilc’s approach is, hence, not based on the liability of states in the absence of fault but on the duty of states to ensure that the ones who cause the damage also provide reparation and compensation. The liability regime as reflected in and provided by the ilc Draft Principles and specific conventions is complementary to the regime of state responsibility, and also to national civil or criminal law regimes or criminal prosecution under marpol and other conventions.877

The ilc Draft Principles require states to prescribe a regime based on strict liability, in which there is no need to prove fault.878 Also, states should require the operator (or other person or entity) to provide financial security to cover claims of compensation, and they should ensure the establishment of industry-wide funds and provide additional funds if necessary.879 In the event of an incident involving a hazardous activity, states are required to ensure that appropriate response measures are taken and to cooperate with affected states in mitigating and eliminating the effects of transboundary damage.880 The ilc Draft Principles define the term damage in a manner to include damage to the environment per se (in form of a ‘loss or damage by impairment of the environment’), as well as ‘the costs of reasonable measures of reinstatement of the […] environment, including natural resources’.881 In the commentary to the draft principle, the ilc notes that this definition reflects a recent and emerging notion of damage, and that some questions related to this notion are, at the current state of affairs, left to be answered by national law (including the questions of who may take redress in the event of damage to the environment and how such damage is best to be assessed).

The ilc principles further provide that states have to ensure non-discriminatory access for victims of transboundary damage to national remedies.882 Such remedies have to be prompt, adequate and effective. The wording of the ilc draft principle strongly reminds of unclos Article 235(2), requiring states to ‘ensure that recourse is available in accordance with their legal systems for prompt and adequate compensation or other relief’.883

Finally, the ilc Draft Principles encourage states to conclude specific global, regional or bilateral agreements regulating compensation for damage and related issues, as well as providing for supplementary funding for compensation, with regard to particular categories of hazardous activities.884 Such specific agreements are especially desirable for ultra-hazardous activities and other activities for which, for any reason, the general regime seems unsuitable or insufficient.885 Specific treaty regimes can be tailored to particular activities. While, for instance, strict state liability might make sense for damage associated with activities in outer space, it will probably not be the right approach to deal with oil spill damage, in which case the shipowner or, possibly, the receivers of the cargo, are the main source of redress. The different treaty-based liability regimes also have different approaches with regard to their geographic scope of applicability, compensation limits, compulsory insurances or possible defences.

With regard to marine plastic pollution from land-based sources, no specific treaty-based liability regime has been adopted. unclos only provides in this respect that states ‘shall be liable in accordance with international law’.886 Also, neither state practice nor any international treaty provides, in a general way, for strict state liability for damage caused by the introduction of plastics into the sea. Rather, unclos Article 235 indicates that states are only liable for their failure to comply with their obligations under the convention (they are ‘responsible for the fulfilment’ of respective obligations), but not without fault.887 The case of marine plastic pollution thus falls under the general regime as reflected and developed by the ilc Draft Principles on the Allocation of Loss.

The absence of a clearly identifiable polluter might be one of the reasons why no compensation schemes have been adopted at the international level for marine plastic pollution from land-based sources. Admittedly, the exact design of such a regime is, perhaps, less obvious than with regard to oil pollution or nuclear plants. In the case of plastic pollution, obligatory insurances or direct resort to operators only makes sense for a limited number of the actors involved, for instance for plastic producers or converters in the case of pellet loss, for the operators of landfills, or for the pellet transport industry.888 In practice, such insurances will only take effect in formalized and well-organized systems. It is difficult to imagine how such a system could address the informal waste sector, including illegal dumpsites and related marine debris. Otherwise, alternative sources for compensation funds have to be developed in line with the polluter pays principle. This would best be done by the internalization of these costs and extended producer responsibility.

3) unclos Dispute Settlement
a) The Mechanisms

unclos Part xv sets out a comprehensive dispute settlement system. In principle, it is a two-tier system involving, as a first tier, voluntary procedures, including conciliation. Where no settlement can be reached by recourse to such voluntary procedures, compulsory procedures apply, all of which entail binding decisions. unclos is, hence, one out of very few treaties to provide compulsory jurisdiction on environmental disputes, while giving the parties a relatively large freedom of choice with regard to the procedures.889 Notwithstanding any scepticism towards the effectiveness of traditional means of enforcement in international environmental law, unclos dispute settlement is one of the particularities of the regime and well deserves a mention. itlos, a special tribunal established under the convention, and a number of ad hoc arbitration tribunals have adjudicated a growing number of environmental cases. They have addressed substantial issues, including with regard to the interpretation and application of unclos Part xii and pollution prevention,890 due diligence,891 cooperation,892 and environmental impact assessment.893 They have also dealt with the question of provisional measures for the protection and preservation of the marine environment.894 In addressing these issues, the tribunals have substantively contributed to the consistent application of the law and its continued evolution.895 The present subsection will shortly explain the mechanisms.

The dispute settlement procedures as set out in Part xv constitute an integral part of the convention. Part xv is divided into three sections: Section 1 contains a number of general provisions, including with regard to voluntary procedures; Section 2 addresses compulsory procedures entailing binding decisions; and Section 3 deals with the limitations and exceptions to these procedures.

In Section 1, parties are required ‘to settle any dispute between them concerning the interpretation or application of the Convention by peaceful means’ as indicated in Article 33 of the UN Charter.896 Such means include ‘negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice’.897 Some of these means are diplomatic in nature and do not produce legally binding decisions (e.g. mediation or conciliation). In contrast, arbitration and judicial settlement are the classical means for parties to obtain binding decisions. unclos does not, in principle, prefer one of these means over another. Rather, parties are free to choose any peaceful means to settle a dispute at any time.898

When a dispute arises, the parties have an obligation to ‘proceed expeditiously to an exchange of views’ regarding the choice of dispute settlement procedure.899 Article 284 provides for the possibility of conciliation. If parties agree to submit a dispute to voluntary conciliation, they may do so in accordance with the procedure under unclos Annex v or any other conciliation procedure. If the parties are not able to settle the dispute by use of the means of their own choice, or if an agreed time-limit expires, the procedures provided for in Part xv Section 2 apply.900 Parties may also agree to settle a dispute between them by the means provided for in Section 2 without prior resort to voluntary means under Section 1.

Section 2 addresses compulsory dispute settlement. By accepting the terms of the convention at the time of ratification or accession, parties also accept the compulsory dispute settlement procedures laid down in Part xv Section 2 and related provisions.901 They apply whenever the following three conditions are met cumulatively:

  1. 1)A dispute arises between parties concerning the interpretation or application of the convention;
  2. 2)the requirements of Section 1 are satisfied, unless otherwise agreed by the parties; and
  3. 3)none of the exceptions under Section 3 applies.902

Parties are free to choose one or more of the suggested procedures. There are four options: the itlos; the icj; an arbitral tribunal constituted in accordance with Annex vii; or a special arbitral tribunal constituted in accordance with Annex viii. The last option is reserved to disputes relating to: fisheries; the protection and preservation of the marine environment; marine scientific research; or navigation, including pollution from vessels and by dumping. Parties may give effect to their choice of procedure by means of a written declaration when signing, ratifying or acceding the convention or at any time thereafter.903 If a party has not submitted a written declaration before a dispute arises, it is deemed to have accepted arbitration in accordance with Annex vii.904 Arbitration in accordance with Annex vii also applies to disputes between parties that have not accepted the same procedure, unless they agree otherwise.905 The choice by the parties does not affect the jurisdiction of the itlos Seabed Disputes Chamber in cases related to activities in the Area.906

The court or tribunal adjudicating on a case in accordance with Part xv has jurisdiction over any dispute concerning the interpretation or application of the convention or any other international agreement related to its purposes.907 Applicable law includes unclos and other rules of international law that are compatible with the convention.908 At the request of a party or proprio motu, the court or tribunal may select scientific or technical experts without a right to vote.909 If the parties so agree, it may decide a case ex aequo et bono.910 Decisions taken by the court or tribunal are final and binding on the parties to the dispute for the particular dispute at stake.911 Even in the event that a party refuses to participate in proceedings and does not appear in hearings, it remains bound by the decision taken by the tribunal or court.912

Under certain conditions, the court or tribunal may prescribe provisional measures, including for the prevention of serious harm to the marine environment or for the protection of marine resources.913 itlos has granted provisional measures when a party was able to establish a serious risk, even if full scientific proof could not be provided.914 It ordered parties to consult and negotiate, exchange information, and assess and monitor environmental risks. It does not, however, order cessation of a potentially harmful activity by means of an interim order.915 Parties to the dispute have to comply promptly with provisional measures that have been prescribed in this way.916

unclos Part xv, Section 3 provides for a number of limitations on the applicability of Section 2 and optional exceptions to it. Specifically, the tribunal or court may only exercise limited jurisdiction over disputes concerning the exercise by a coastal state of its sovereign rights or jurisdiction provided for in unclos. However, Section 2 applies to cases in which it is alleged that a coastal state ‘has acted in contravention of specified international rules and standards for the protection and preservation of the marine environment’.917 Under Section 3, parties have also the possibility to activate exceptions from compulsory settlement. A state may declare that it does not accept such procedures with regard to disputes concerning sea boundary delimitations; historic bays and titles; military activities and law enforcement activities.918

The itlos Statute is contained in unclos Annex vi. The tribunal has 21 members with ‘recognized competence in the field of the law of the sea’.919 It has a Special Chamber for Marine Environment Disputes consisting of nine members. The expertise of the judges may be counted among the benefits of the regime. In other respects, opinions on the unclos dispute settlement system vary. While its substantial contribution to environmental jurisprudence is widely acknowledged, a certain risk is associated by some with what has been referred to as the proliferation of international courts and tribunals.920 Whether under unclos dispute settlement or any comparable regime, the most conspicuous feature about the judgments dealing with environmental matters is, perhaps, that they most commonly require parties to cooperate better and negotiate further.921 They may provide that an environmental obligation has been breached922 or require parties to cease activities or take further measures.923 By contrast, they are usually silent about matters related to liability and compensation for environmental damage.924 In any case, the jurisprudence of international courts and tribunals plays an important role for the (evolving) interpretation of treaty provisions and general law. Beyond that, their implications are mainly political in nature. As has been said: ‘Community pressure remains in practice the only real sanction for enforcing compliance with arbitral awards, or with judgments of the icj or other international tribunals, and it is only in that very limited sense that we can talk about courts “enforcing” international law at all’.925

b) Lack of Compliance Facilitation

With the treaty’s reliance on state responsibility and dispute settlement, unclos enforcement is mainly based on traditional means of international enforcement. Especially in international environmental law, a number of disadvantages are associated with these traditional means of enforcement, including their bilateral and confrontational character, the ex post approach that is inherent to them (while damage to the environment is often irreversible), the inappropriate response they provide with respect to a wide range of environmental problems or common concerns, and a perceptible reluctance of states to resort to them.926 Owing to these weaknesses, the last few decades have seen the rise of alternative regimes, which generally facilitate dispute avoidance and are based on new approaches to deal with cases of alleged non-compliance.

Traditional enforcement mechanisms provide states with a means to respond to an infringement of their rights, for instance by taking countermeasures or retaliatory action until the wrongful act is ceased and damage compensated, or by suspending or terminating a treaty.927 Environmental regimes, however, often address global concerns rather than (or on top of) the interests of individual states. With regard to the general aim of such a regime – including the protection of the environment and the prevention of damage – retaliation or the suspension or termination of a treaty are, arguably, counterproductive responses to a failure by a particular state to comply with its environmental obligations.

This becomes even more evident when taking into account the fact that non-compliance – especially with environmental obligations – is not necessarily due to bad faith or intentions but may have many reasons, including limited capacities and a lack of necessary financial, institutional and other resources.928 It may be due to policy constraints, for instance when environmental degradation is accepted for the sake of developmental projects pushed for by domestic stakeholders and foreign investors.929 Also, since norms and standards of environmental protection are not always very well defined and without ambiguity, there might be competing interpretations of the law, which complicates enforcement. With regard to unclos Part xii, such uncertainties are, for instance, related to the standard of care in due diligence obligations, the threshold of acceptable environmental harm and precaution.930

New approaches to non-compliance, such as reflected in a number of regional seas instruments, try to better accommodate some of the particularities associated with compliance with environmental obligations.931 Instead of ex post responses to infringements, they allow for active compliance management. Most importantly, such compliance mechanisms facilitate the identification of non-intentional causes of non-compliance, including the lack of capacities or resources. Additionally, they allow the addressing of such causes in a more anticipatory manner, ideally before serious or irreversible damage occurs. In doing so, they transpose the principle of preventive action into the procedural and institutional setting. Recourse to state responsibility and formal dispute settlement procedures may be avoided by the use of non-adversarial procedures. Non-compliance procedures do not, however, preclude the use of traditional enforcement mechanisms but offer an additional way of addressing compliance.932

Given the difficulties in the enforcement of the duty to protect and preserve the marine environment with regard to marine plastic pollution mitigation, a compliance facilitation procedure would seem necessary and useful. It would have to be tailored to the problem related to plastics and be linked to compliance review mechanisms. Compliance and implementation review usually comprises reporting obligations and may also have financial implications. In the case of plastic pollution, reporting obligations require harmonised monitoring methods. Whether unclos would be the most suitable institutional home for such a mechanism is questionable. In view of the ongoing discussions under the auspices of UN Environment, the adoption of a new instrument specifically dealing with marine plastic pollution mitigation seems conceivable. The adoption of such an instrument would be a perfect opportunity to complement well-defined substantive requirements, such as the phase-out of certain products or national reduction targets, with an effective compliance facilitation mechanism and capacity-building scheme.

Conclusion of Section B

The adoption of unclos was an important step forward in the development of a global regime on the protection and preservation of the marine environment. Its comprehensiveness, the package-deal approach, the fact that it represents a nearly global consensus and the customary status of most of its norms are some of the evident particularities of the convention. Also, unclos set up a dispute settlement mechanism that is unique among environmental treaties and contributed considerably to the jurisprudence in this field of law. Part xii of the convention is innovative in that it introduced a general obligation to protect and preserve the marine environment and to prevent, reduce and control marine pollution from all sources by the adoption, implementation and enforcement of appropriate measures, including regulatory. The unclos regime is based on diligent control and regulation, and thus set an end to the former freedom of states to pollute the marine environment.

The obligation to protect and preserve the marine environment constitutes the core and foundation of the regime applying to marine plastic pollution mitigation from land-based sources. As an obligation of due diligence, it has to be interpreted in the light of contemporary international environmental law. Its content is informed by unclos Part xii and other applicable rules of international law. The obligation not only consists of a negative duty not to cause significant damage to the marine environment but also comprises a positive obligation to proactively take measures to prevent, reduce and control pollution of the marine environment, including through the adoption of national measures, international cooperation, standard-setting activities, technical assistance, environmental impact assessment and monitoring of potentially harmful activities. Risk evaluation, precaution and cooperation play an important role in the fulfilment of respective obligations. Recent case law moreover suggests that states, in their obligation to adopt regulatory and other measures, have to give sufficient attention to the conservation and preservation of ecosystems.

Instead of defining a certain level of protection and regulating specific activities or substances within the convention or annexes, unclos incorporates standards as adopted by the relevant international organizations. With this mechanism, it allows for a continuous development and evolution of the regime.

In view of the above, unclos provides a relatively strong general framework on the protection of the marine environment and the regulation of marine pollution. The merits of the regime must, however, be put into perspective when it comes to the specific problem of marine plastic pollution from land-based sources. On closer inspection, several diluting factors attenuate the advantages of the convention and lead to the conclusion that it does not give a sufficient response by itself to this particular problem. Evidence of continuously increasing amounts of plastics in the oceans supports this conclusion.

There are many reasons why the regime does not take the desired effect. unclos is not tailored to the issue of marine plastic pollution and does not provide for specific solutions, neither at a substantive level nor at the level of enforcement. For the purpose of plastic pollution mitigation, unclos Part xii provisions are too general in nature. In the absence of a more specific instrument that fills the gaps and gives more specific content to them, many of these provisions are either inappropriate or insufficient – or simply not enforceable.

From a substantive point of view, the following factors deserve particular attention in this respect:

  1. Due diligence in the absence of relevant legally binding international standards: While the concept of due diligence is a valuable one to reflect different realities and take into account geographic, economic and other factors, it is accompanied by a range of legal uncertainties. Overall, there is little guidance in the convention on how exactly to interpret the obligation to prevent pollution with respect to plastics, and how to define the standard of care. In order to give effective content to the general obligations, unclos depends highly on the existence of international standards. Reference to such standards is weaker with regard to land-based sources than with regard to other pollution sources. Also, existing international standards that are specifically relevant to plastics from land-based sources are mostly non-binding in nature. While states are generally obliged to take them into account in the adoption of national measures, there is no strict obligation to implement them. As a consequence, reference to international standards does not sufficiently clarify the uncertainties related to the general obligations with regard to plastics. The case would arguably be different if there was a legally binding international instrument providing for sufficiently clear standards on marine plastic pollution mitigation.
  2. Lack of reference to relevant environmental management principles: unclos does not directly refer to sustainable development (including policy integration and the accommodation of the needs of future generations), the precautionary approach, the polluter pays principle (including cost internalization), clean production or integrated coastal zone management. These and other principles are, however, fundamental in the combat of marine plastic pollution.
  3. Lack of reference to plastic-specific tools providing for additional guidance: Also, unclos does not define control measures for point and non-point pollution sources, or provide a list of substance categories and activities to be covered by preventive measures. Neither does it refer to the waste management hierarchy (or related reduce–reuse–recycle paradigms), best available techniques or best environmental practices, or any similar tool that would provide for additional guidance. There is no direct requirement in unclos to include business and civil society. Similarly, public–private partnerships and environmental education are not addressed. The experience gained in regional frameworks and at the national level, however, shows that these can be important aspects in plastic pollution mitigation. While the regional instruments do not have global reach, they may serve as example models for a more effective international regime. Also, they provide some important building blocks for such a regime.933
  4. Environmental impact assessment and monitoring: unclos requires that environmental impact assessment and environmental monitoring be undertaken with regard to activities, but does not define the minimum content of the reports. It is not evident how the obligation to undertake environmental impact assessment can best be applied to plastics, and to non-point sources of plastic pollution in particular. Again, it is the continuous, diffuse and accumulative nature of plastic pollution that poses the main challenge here. Reference to life-cycle assessment would perhaps be more suitable in this respect. Moreover, unclos does not require states to assess environmental policies and legislation. Yet, impact assessment of policies seems essential, including when it comes to changing production and consumption patterns and other behavioural issues.
  5. Capacity-building: unclos allows for graduation, taking account of the fact that a low level of development and widespread poverty are restraining factors in the adoption and implementation of effective environmental regulation. Yet, while unclos takes into account different levels of capacity and provides for the necessary flexibility in the standard of care, it does not counterbalance this flexibility with a sufficiently strong capacity-building scheme. In view of the problematic waste management conditions prevailing in many countries worldwide and the high costs related to their improvement, the provision of targeted and coordinated support, including financial, is absolutely necessary.934 The convention does not provide the legal and institutional basis for concerted action in this regard.

While states have substantive obligations under unlcos to adopt a conduct towards the prevention and mitigation of marine plastic pollution, enforcement of such obligations is an extremely challenging task. Challenges include the difficulties associated with the identification of the polluter in a specific case and the provision of the necessary evidence in this regard; the determination of the standard of care with respect to marine plastic pollution mitigation in the absence of binding international standards; the lack of capacities in a context of due diligence obligations; the reluctance of states to bring cases solely related to areas beyond national jurisdiction or domestic pollution; the fact that all states contribute to the problem (collective action problem); the definition of hazardous activities and the question to what extent plastic production, use and disposal fall under this term; the gradual accumulation of negative effects and the quantification of environmental damage in this context. The absence or weak effect of principles and obligations specifically tailored to the problem at stake and the lack of guidance for implementation at the substantive level add to the problem. These challenges constitute a relatively high hurdle for a case to be brought even in interstate constellations.

With its reference to the law of state responsibility and liability on the one hand and its solid dispute settlement mechanism on the other hand, unclos widely relies on traditional means of enforcement. These traditional, interstate enforcement mechanisms have not, so far, provided a means to appropriately address the ‘incremental and gradual harmful effects of normal activities’.935 They presuppose that the wrongdoer, if there is one, can clearly be identified. Yet, marine plastic pollution, as massive and problematic as it may be, does not result from a single act or omission that can easily be associated with a particular polluter. Rather, damage is insidious, cumulative and dispersed. This continuous, dispersed and diffuse character of plastic pollution is the main hurdle to unclos enforcement. It is related to – or, indeed, at the root of – many of the above identified challenges. In this specific plastic-related context, traditional dispute settlement seems more of a theoretical option than of a way to give the provisions real effect. Also, the general reluctance of states to resort to public interest standing means that, in practice, large parts of marine plastic pollution are not effectively covered by the convention’s enforcement mechanism. These parts include large accumulation zones in the high seas and the deep seabed, as well as domestic pollution on tourist beaches or from landfills, plastic factories and population centres situated close to the coast when evidence of transboundary damage cannot be provided.

In order to enhance compliance and increase practical enforceability of the duty to protect the marine environment from plastic pollution, some basic features, which respond to the identified challenges, seem necessary. One of these features is the improvement of the substantive rules by defining clear and legally binding standards, taking into account relevant environmental principles and management tools. Another such feature is the creation of a compliance facilitation procedure complementing and supplementing the unclos dispute settlement regime. Effective compliance facilitation usually comes along with reporting obligations by states on national implementation, as well as global implementation review and a strong capacity-building scheme. International coordination of financial and technical resources seems necessary in this context.

These elements could be covered by a special instrument directly addressing marine plastic pollution, especially from land-based sources. Working towards such an instrument goes in line with the obligations under unclos to cooperate at the appropriate level, including international, to harmonize policies and to adopt and enforce international standards.936 By virtue of Article 237, a special instrument on marine plastic pollution in furtherance of the principles as set forth in unclos would have priority over the more general provisions of unclos Part xii. At the same time, the adoption of such an instrument would give much greater effect to the general provisions under unclos, as these provisions would be informed by the adopted standards on plastic pollution mitigation. On the other hand, unclos would strengthen the effect of international standards on marine plastic pollution mitigation adopted by a competent international organization or a diplomatic conference. According to unclos Article 213, states would have to adopt laws and regulations and take other measures necessary to implement them. Thanks to the incorporated reference to such standards, unclos would thus not need to be amended to include plastic-specific obligations, but could effectively fulfil its role as a framework convention. Within this framework and appropriate regional cooperation, countries have a policy space with regard to national implementation. The model corresponds to the doctrine of multilayered governance, or the Five Storey House, which allows assigning regulations to appropriate levels of governance, from local to global.937

In order to better apprehend the need of such an instrument, Sections C and D discuss the relevance of other global instruments to marine plastic pollution mitigation and their relationship to unclos. Most of the instruments that are relevant to plastics are mutually supportive with respect to the objectives and obligations under Part xii. Even if there are competing objectives, conform interpretation is usually possible and corresponds to the practice of international courts and tribunals.938 In fact, a real conflict of norms is rare in this context.939 External norms that are relevant to the protection and preservation of the marine environment, be it in a direct or indirect way, inform the content and interpretation of the duties of states under unclos Part xii, and vice versa. This is also true if, as the case may be, there are slight differences in the membership of the respective treaties.940

The most delicate relationship with regard to regulatory coherence may be the one between unclos Part xii and international trade regulation. Trade law is relevant in that it defines and limits the leeway of states in taking implementing measures with potentially trade-distorting effects. A smooth interplay between environmental obligations and trade law is possible and corresponds to the normal case. However, environmental measures with extraterritorial effects have repeatedly been challenged before the wto dispute settlement bodies and have usually been won by the complaining party (that is the foreign state affected by the measure). The same constellation is conceivable with regard to national measures taken in the prevention and combat of marine plastic pollution. Section C gives a brief overview on the law of the wto and discusses its relation to unlcos Part xii.941 The specific role of wto law with regard to national implementation measures in marine plastic litter mitigation will be discussed in Section 2.3.B.

C The Law of the World Trade Organization

In contrast to the environmental agreements that will be discussed in Section D, trade law, and the related fields of investment law and intellectual property rights law, have primarily an economic and developmental rationale. According to the preamble of the Agreement Establishing the World Trade Organization (Marrakesh Agreement), the general objective of wto-covered agreements is to raise standards of living, ensure full employment and economic growth, and expand the production of and trade in goods and services. To this purpose, the agreements aim at substantially reducing tariffs and other barriers to trade and eliminating discriminatory treatment in international trade relations.942 These policy objectives may well compete with the desire to protect and preserve the environment, which has been a main driver in the adoption of unclos Part xii.

The fact that wto-covered agreements and unclos are based on different, potentially competing policy objectives does not, however, mean that the respective provisions are per se incompatible. In fact, conflicts or inconsistencies between the two regimes are the exception and not the rule. There is little case law related to interferences between unclos and wto commitments, and none of the cases focused on Part xii obligations.943 Adjudicating bodies and the legal doctrine suggest that these commitments can be reconciled, since both sets of treaties focus on international cooperation as a preferred approach when compared to unilateral action by individual states.944

Discussion on the interrelation between unclos and wto-covered agreements forms part of the broader debate on the nexus between environment and trade in international law. It is not merely theoretical but is practically relevant at different levels (comparable to the ones identified under the concept of common concern945):

  1. First, it is relevant at the level of the states’ domestic obligations. While unclos Part xii and wto-covered agreements are not per se incompatible, tensions may arise at the level of implementation. Measures taken in the fulfilment of environmental obligations may be a priori inconsistent with rules of wto law and related agreements. Such inconsistencies may especially arise when implementing measures, possibly taken on a unilateral basis, have negative effects on other states, either by limiting their market access or because the measures discriminate in their effect against foreign products when compared to like domestic products. In general, wto rules play a potentially inhibiting role with regard to trade measures that aim at influencing the behaviour of actors abroad and enforce self-set standards in other countries, including in protection of the global commons. In fact, policy measures with trade effects are sometimes a preferred method for states to address environmental problems caused outside their own jurisdiction. Discussions on the interface of environmental and trade law often focus on this particular aspect and are thus closely related to the issue of extraterritorial jurisdiction and unilateralism.946 Trade restrictions of goods based on (non-product-related) processes and production methods (so-called ppms) are of a particular concern in this regard and highly controversial in the context of wto law.947
  2. Second, the wto potentially fosters international cooperation in the development and implementation of environmental law: the efforts taken under the aegis of the wto to collaborate with the secretariats of multilateral environmental agreements, and the approach taken by the wto dispute settlement bodies in respect of such agreements, strongly encourage states to adopt common solutions to environmental problems and to cooperate at the global and appropriate regional levels.948
  3. Third, international trade regulation plays a restraining role with regard to the adoption of unilateral measures in terms of trade sanctions towards a non-complying state that, as a free rider, possibly benefits from specific efforts of other states but does not fulfil its own duties in this respect. The effectiveness of such sanctions is disputed with regard to environmental duties, especially if non-compliance is mainly due to low capacities.
  4. Finally, the relationship between unclos and wto law is relevant with regard to dispute settlement: wto dispute settlement may offer countries affected by a measure a possibility to challenge the measure in question. Competing dispute resolution between unclos and wto dispute settlement bodies is therefore conceivable and has been an issue in at least one case.949 A further issue that may arise in this regard is the question of whether and to what extent dispute settlement bodies of one regime may, or have to, take into account agreements associated with the other regime in the interpretation of their own treaties.

The current subsection starts with a brief introduction into the institutional set-up of the wto (i) and the core principles and obligations under wto law (ii). It then examines the interrelation between the wto and unclos Part xii (iii) and generally addresses some issues of coherence, including with regard to national implementation, the role of international cooperation and a potential international agreement on plastics, and unilateral measures (iv).

i The wto in a Nutshell

The wto system has its roots in the post-Second World War spirit that coined major trade liberalization efforts in the promotion of global economic growth. Along with the International Monetary Fund and the International Bank for Reconstruction and Development (today’s World Bank), the 1947 General Agreement on Tariffs and Trade (gatt 1947)950 formed one of the three pillars of the Bretton Woods system. The gatt induced substantial tariff reductions in global trade in goods and also tackled non-tariff barriers to trade, trade in services and trade-related aspects of intellectual property rights. Commitments were defined in eight multilateral trade negotiation rounds, the last of which was held in Uruguay in 1994. At the so-called Uruguay Round, the wto was established through the Marrakesh Agreement. The wto administers a revised version of the gatt as well as a number of other agreements, all of which are annexed to the Marrakesh Agreement. Its organizational structure includes the Committee on Trade and Environment (cte), which addresses various aspects of the relationship between international trade and the protection of the environment.

In 2001, the Doha programme of work was launched, which is sometimes referred to as a ninth negotiation round or the ‘Doha Round’. In the Doha Round, the cte was charged with focusing on the relationship between wto rules and multilateral environmental agreements, collaboration between the wto and secretariats of environmental agreements, and the reduction of barriers to trade in environmental goods and services. More generally, Doha negotiations focused on a number of highly contentious subjects, including agriculture trade. They have been hampered by strong tensions between developing and developed countries, and have not yielded the results that were hoped for. The round was concluded in 2015 without major achievements. Arguably, it marks a crisis in multilateral trade negotiations, which led to the negotiation of a number of ‘mega-regional’ trade agreements seemingly competing with the multilateral trading system, until negotiations came to an abrupt halt with the election of President Trump in the United States in 2016.951

Current discussions within the wto are still marked by the ongoing crisis, but also the management of global challenges related to the environment and the corona pandemic in 2019. The role of the wto and global trade in relation to plastic pollution is also increasingly an issue in this context.952 In November 2020, a group of wto members launched an Informal Dialogue on Plastics Pollution and Environmentally Sustainable Plastics Trade. The purpose of the Informal Dialogue is to identify key opportunities for enhanced trade cooperation to support domestic, regional, and global efforts against plastic pollution.953

Dispute settlement is one of the core functions of the wto. The Dispute Settlement Understanding (dsu)954 is one of the instruments annexed to the Marrakesh Agreement. It fundamentally reformed dispute settlement as practised under the 1947 gatt and established a solid, unparalleled trade dispute settlement system which is at the heart of international trade regulation.955 The system involves several steps: in the event of a dispute being raised, parties first have to consult and strive for a mutually acceptable solution. Only if consultations fail may the complaining party request the establishment of an ad hoc panel.956 In the event of such a request, a panel is established by the Dispute Settlement Body (dsb), a body consisting of representatives from all member governments.957 The panel will examine the case referred to it and report its findings to the dsb. If the panel’s report is appealed by either of the parties, the case is heard by the Appellate Body, a standing body with its seat in Geneva, Switzerland. The Appellate Body usually consists of seven persons.958 Normally, it can uphold, modify or reverse the legal findings and conclusions of the panel.959 Parties have to accept Appellate Body reports unconditionally.960 The report (not appealed or as revised by the Appellate Body) is adopted by the dsb, unless the dsb decides by consensus not to adopt it.961 Based on the report, the dsb can request a party to bring a measure that is found inconsistent with a covered agreement into conformity with the party’s obligations under that agreement. The party has to report on implementation of the report in a reasonable period of time.962 If it fails to implement it, the parties may agree on compensation measures or the dsb may authorize the winning party to retaliate by suspending concessions owed to the non-implementing party.963

ii Core Principles and Agreements

Core objectives of the wto regime include fair competition and the improvement of market access through the lowering of tariff and non-tariff barriers to trade, non-discrimination and transparency. These disciplines form an integral part of the covered agreements, each of which addresses a particular aspect related to international trade. For the purposes of this book, three instruments are of particular relevance: the gatt, as revised in 1994, provides for the general rules on trade in goods, including, of course, plastic products.964 The Agreement on Technical Barriers to Trade (tbt) is relevant for measures involving technical regulations and standards, including labelling and product or packaging regulations that relate to the life cycle of plastics or refer to their properties, basic ingredients, degradability, or related processes and production methods.965 Finally, the Agreement on the Application of Sanitary and Phytosanitary Measures (sps) may be of some relevance in the food packaging and beverage sectors.966 Further covered agreements, such as the Agreement on Trade-Related Aspects of Intellectual Property Rights (trips),967 the Agreement on Subsidies and Countervailing Measures (scm)968 or the Agreement on Government Procurement (gpa), as well as international treaties on investment protection, might also be relevant with regard to measures on plastics and marine litter prevention but will not be further discussed here.

1) The General Agreement on Tariffs and Trade
a) Basic Disciplines under gatt

In order to improve general conditions of market access, wto law defines and limits permitted measures by members for regulating trade. Under gatt, the only admitted trade barriers are import or export taxes (often referred to as tariffs969) and other charges of an equivalent effect, as well as import licences.970 In the Uruguay multilateral negotiation round, countries agreed to further cut tariff rates and ‘bind’ them to a certain level. Bound tariff rates may not be raised without compensating affected parties. For the sake of transparency and predictability, countries’ commitments in this regard are defined in their schedules of concession.971

wto obligations are fundamentally based on the principle of non-discrimination, which has been referred to as the ‘critical discipline’ of wto law.972 The principle is reflected in the most favoured nation and national treatment principles. The most favoured nation principle (mfn), which is prominently reflected in gatt Article i, requires that if special treatment is given to the goods and services of one country, the same treatment (or treatment no less favourable) be accorded to like goods and services of all wto member states.973 Through the mfn, tariff and other trade concessions by a state towards another state apply between that state and all other wto members.974

Perhaps more crucial with regard to the subject at hand, the national treatment principle, as enshrined in gatt Article iii, requires that imported goods from other countries be treated no less favourably than like domestic goods.975 The provision requires equality of competitive conditions and aims at protecting expectations of equal competitive relationships.976 According to its paragraph 1,

contracting parties recognize that internal taxes and other internal charges, and laws, regulations and requirements affecting the internal sale, offering for sale, purchase, transportation, distribution or use of products […] should not be applied to imported or domestic products so as to afford protection to domestic production.977

Paragraphs 2 and 4 define national treatment obligations with respect to internal taxation and internal regulations, respectively. An internal tax or other internal charge applied to imported products is inconsistent with gatt Article iii:2, first sentence, when it exceeds taxes or charges applied to like domestic products.978 According to gatt Article iii:2, second sentence, internal taxes or other internal charges are not to be applied to imported or domestic products so as to afford protection to domestic production. The Note Ad Article iii provides in this respect that a tax ‘would be considered to be inconsistent with the provisions of the second sentence […] where competition was involved between, on the one hand, the taxed product and, on the other hand, a directly competitive or substitutable product which was not similarly taxed’.979 gatt Article iii:2 thus provides for a stricter requirement with regard to the taxation of like products than with regard to the taxation of the broader category of directly competitive or substitutable products: while no tax differential whatsoever is allowed between imported and like domestic products to the detriment of the imported product (first sentence), an internal tax imposed on imported products may slightly exceed taxes on directly competitive or substitutable domestic products (second sentence).980 Inconsistency with gatt Article iii:2, second sentence moreover presupposes an element of protectionism, namely that the tax measure in question be ‘applied to imported or domestic products so as to afford protection to domestic production’.981 According to the Appellate Body, the protective application of a measure can most often be discerned from its design, its architecture, and its revealing structure.982

Internal taxes or other internal charges in the sense of gatt Article iii:2 are distinct from border measures in that they ‘accrue due to an internal event, such as the distribution, sale, use or transportation of the imported product’.983 The characterization of a measure in a state’s domestic law is not decisive in itself for the measure’s qualification as an internal measure under wto law, nor is the intent of the legislators.984 gatt Article iii:2 also covers indirect taxation, such as taxes imposed on raw materials used in the products,985 or border tax adjustment measures.986

The principle of national treatment also applies to internal regulation. According to gatt Article iii:4, imported products ‘shall be accorded treatment no less favourable than that accorded to like products of national origin in respect of all laws, regulations and requirements affecting their internal sale, offering for sale, purchase, transportation, distribution or use’.987 The provision covers any laws or regulations which might adversely modify the conditions of competition between the domestic and imported products on the internal market, for instance by imposing additional administrative burdens on imported products.988 Voluntary private action may fall under the term requirement if the government can be hold responsible for the private action due to a close link to a government action.989

While the use of tariffs is, under certain constraints, accepted under gatt, its Article xi prohibits quantitative restrictions, including import and export bans, quotas or measures with similar trade-distorting effects. The prohibition is based on the rationale that volume-based measures are assumed to have a more trade-distorting effect than price-based measures. To the extent that quantitative restrictions are justified or exceptionally allowed, they must be applied in a non-discriminatory way.990 wto members are required to notify the secretariat of any quantitative restrictions which they maintain, as well as of any changes in these restrictions.991 The secretariat maintains a public database on quantitative restrictions.

In order to determine whether a specific measure falls under gatt Article iii or gatt Article xi, or both, it is important to take into account the different aims of the two provisions (i.e. equal conditions for competition in internal markets versus market access) and to differentiate between internal measures on the one hand and border measures on the other hand. The differentiation is not always obvious, especially if the measure is applied to imported products at the time or point of importation. The Note Ad Article iii holds in this respect:

Any internal tax or other internal charge, or any law, regulation or requirement of the kind referred to in paragraph 1 which applies to an imported product and to the like domestic product and is collected or enforced in the case of the imported product at the time or point of importation, is nevertheless to be regarded as an internal tax or other internal charge, or a law, regulation or requirement of the kind referred to in paragraph 1, and is accordingly subject to the provisions of Article iii.

It follows that, when the importation of a product is denied on the reason that the product does not conform to domestic environmental legislation (applying also to domestic products), the consistency of the measure with the gatt is to be examined under its Article iii rather than Article xi.992 The cumulative applicability of gatt Articles iii and xi is exceptional but not excluded.993

In the past, states have sometimes resorted to import bans in order to halt the import of goods they considered particularly environmentally destructive. Moreover, some multilateral environmental agreements require import and export bans of specific product categories, such as endangered species or hazardous wastes.994 The wto dispute settlement bodies basically respect environmental obligations of parties that arise from such agreements. Seemingly, trade measures that are based on multilateral environmental obligations have never been challenged under wto law. The case is a different one with regard to unilateral trade measures that do not find a direct basis in an international treaty: although the gatt provides for environmental exceptions, none of the members that resorted to such measures has been able to actually justify them on environmental grounds in a wto case.995

b) The Likeness of Products and ppm-based Measures

With regard to trade in goods, non-discrimination principles are based on the idea of ‘like products’, a concept that must be taken into account whenever discriminatory treatment is at stake. In a case of alleged discriminatory treatment between two products, the likeness of these products – or, in the case of gatt Article iii:2, second sentence, their direct competitiveness or substitutability – has to be established on a preliminary basis. The exact meaning of the concept varies from one provision to another and has to be determined on a case-by-case basis. The Appellate Body held in this respect that ‘the determination of “likeness” under Article iii:2, first sentence, of the gatt 1994 is, fundamentally, a determination about the nature and extent of a competitive relationship between and among imported and domestic products’.996 In this context, the concept of ‘like products’ is narrow. General criteria that have been used by panels and the Appellate Body to determine the likeness of products include:

  1. the product’s properties, nature and quality;
  2. the product’s end uses in a given market;
  3. consumers’ tastes and habits; and
  4. international tariff classification.997

These criteria, which are often referred to as the border tax criteria, serve as tools for assessing the evidence relating to the competitive relationship between and among the products.998 They are not necessarily exclusive. Also, evidence under one of the criteria is not sufficient in itself to establish the likeness of two products. The Appellate Body explained in this respect that

products that have very similar physical characteristics may not be ‘like’, within the meaning of Article iii:2, if their competitiveness or substitutability is low, while products that present certain physical differences may still be considered ‘like’ if such physical differences have a limited impact on the competitive relationship between and among the products.999

The category of directly competitive or substitutable products, as referred to in gatt Article iii:2, second sentence, is construed less narrowly and refers to products that are interchangeable or offer ‘alternative ways of satisfying a particular need or taste’.1000 The potential substitutability of products has been recognized as sufficient for the conditions of the provision to be met.1001

Much like in the case of Article iii:2, first sentence, the determination of likeness under Article iii:4 is, fundamentally, a determination about the nature and extent of a competitive relationship between and among products.1002 However, the Appellate Body found that the meaning of ‘likeness’ under Articles iii:2, first sentence, and iii:4 is not exactly congruent, as the product scope of Article iii:4 and that of Article iii:2, first and second sentence, cannot be significantly different. The term is, therefore, accorded a broader meaning under Article iii:4.1003

The border tax criteria invariably focus on the products themselves, and not on the way in which they have been produced. However, it is questionable whether products should be considered to be like products if environmental impacts associated with their production process greatly vary. In fact, there has been a long-lasting debate on whether and to what extent products may be treated differently because of the way in which they have been produced even if the production method does not influence the physical properties of the end product (non-product-related ppms).1004 The wish of some states to discriminate between products based on environmental considerations clashes with the fear by other, mostly developing, countries of environmental protectionism and a loss of market access.1005

With regard to fish and other natural resources, ppm-based measures may for instance refer to harvesting methods. With regard to the life cycle of plastics, diverging environmental footprints (that is, environmental product performance) may be due to a range of product-related or non-product-related ppms. Some examples are given in Table 6.

Table 6
Examples of ppms with regard to plastic products

Product-related ppms:

Non-product-related ppms:

– the use of different plastic materials or composites in a product (e.g. polystyrene cups vs polypropylene cups)

– the use of different additives in a plastic material (recipes are, however, often not disclosed)

– quantitative and qualitative differences in packaging at different stages of the production chain

– different product designs, reflected in their reusability, recyclability, biodegradability, leakage of additives etc.

– the use of different raw materials (renewable or non-renewable) for the production of the same plastic material

– the use of different energy sources (renewable or non-renewable) for the production of the same plastic material

– the use of different technologies (such as filters) and chemicals in the production process

– pellet leakages and dissimilar management of production wastes

– different transportation modes

The likeness test as traditionally applied by wto dispute settlement bodies only takes environmental and health concerns into account to the extent that they are directly reflected in the product itself.1006 For instance, the Appellate Body refused to introduce a separate criterion to examine health risks associated with a specific product in the ec Asbestos case.1007 It instead used the traditional criteria to deal with health concerns. It emphasized that the health risks associated with the products were reflected in their physical properties and influenced their end use, consumer behaviour with respect to the products and the competitive relationship between the products.1008 The Appellate Body concluded that the evidence brought by the complaining party was ‘far from sufficient’ to satisfy its burden of proving the likeness of the products.1009

While in ec Asbestos the criterion of consumers’ tastes and habits gained in importance, panels and the Appellate Body have not (yet) accepted non-product-related ppms to form part of the likeness test in gatt and wto case law, in spite of their potential to influence consumer behaviour. Perhaps more fundamentally, ppm-based measures have often been dealt with under the prohibition of quantitative restrictions rather than the national treatment obligation, even when the challenged measure regulated not only import but also the use of domestic products.1010 Both the prohibition of quantitative restrictions and the principle of national treatment have significant practical implications as they limit the regulatory autonomy of states with regard to environmental concerns.1011 However, an argument can be made under Article iii that two products are not like products if one has been produced in a more sustainable way when compared to the other, and that they thus are not in a direct competitive relationship (an argument not accepted by wto dispute settlement bodies so far). Under gatt Article xi, even less policy space is accorded to member states for environmental considerations, as the prohibition of quantitative restrictions is not based on the competitive relationship and likeness of products. In this case, countries have to resort to the gatt exception clauses in order to possibly justify their measure.

c) Environmental and Health Exceptions

The general exceptions under gatt Article xx allow states to adopt measures in pursuance of legitimate policy objectives even if these measures are inconsistent with any provision of the gatt. Thus, regardless of whether a measure is considered inconsistent with gatt Article iii or xi, the exception clauses allow states to justify their measure if certain – fairly restrictive – conditions are fulfilled. In the analysis of Article xx, a two-tier test is applied: for a measure to be justified as a general exception, it must:

  1. 1.fall under one of the particular exceptions enumerated in paragraphs a–j (provisional justification); and
  2. 2.satisfy the requirements imposed by the opening clauses of the provision, generally referred to as the chapeau.1012

Legitimate policy objectives include, among other things, the protection of human, animal or plant life or health (paragraph b)1013 and the conservation of exhaustible natural resources (paragraph g). Legal measures that are relevant to the protection of animal welfare and the biodiversity have also been provisionally justified under the public morals exception (paragraph a).1014 The approaches under these paragraphs are similar, although requirements with regard to the link between the measure and the policy objective are stricter under paragraphs a and b than under paragraph g: in order to be provisionally justified under the former two, measures need to be necessary to protect public morals or human, animal or plant life or health, respectively;1015 under paragraph g, it is sufficient if the measures are relating to the conservation of exhaustible natural resources.1016 However, in order for an environmental measure to be provisionally justified under paragraph g, it has to be ‘made effective in conjunction with restrictions on domestic production or consumption’.

With regard to the exception clauses, the Appellate Body held that ‘a balance must be struck between the right of a Member to invoke an exception under Article xx and the duty of that same Member to respect the treaty rights of the other Members’.1017 To this purpose, the specific exception clauses are complemented by the chapeau. As an introductory clause, the chapeau addresses the manner in which a measure is applied and sets out a number of negative conditions in this regard. A measure that is provisionally justified under one of the exception clauses must hence not be ‘applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail, or a disguised restriction on international trade’.1018 The requirements of the chapeau are a major stumbling block for unilateral measures with coercive, extraterritorial effects when these measures are not based on prior consultation and cooperative efforts.1019 The burden of proving that a measure which is provisionally justified does not, in its application, constitute a means of arbitrary or unjustifiable discrimination or a disguised restriction on international trade, rests on the party invoking the exception.1020

US Shrimp is considered a landmark decision with regard to the justification of a ppm-based measure. The case deals with the justification of a measure discriminating between shrimp products based on the way the shrimp was harvested. It marks a milestone in that the Appellate Body considered the measure, which aimed at protecting marine turtles, to be provisionally justified under gatt in spite of its extraterritorial effects.1021 It notably held that ‘there is a sufficient nexus between the migratory and endangered marine populations involved and the United States for purposes of Article xx(g)’.1022 ppm-based measures are, thus, not automatically considered inconsistent with wto law.1023 In the end, however, the measure was found to constitute an unjustifiable discrimination because of the way it was applied. Aggravating factors included the measure’s ‘intended and actual coercive effect on other governments’ to ‘adopt essentially the same policy’ as the United States, the failure by the US to have ‘prior consistent recourse to diplomacy’, the lack of flexibility of the measure with regard to the different conditions prevailing in the exporting countries, and its lack of transparency and predictability.1024

2) The Agreement on Technical Barriers to Trade
The tbt covers measures related to technical regulations and standards. The agreement defines technical regulations as any document ‘which lays down product characteristics or their related processes and production methods […] with which compliance is mandatory’.1025 It further provides that such a regulation ‘may also include or deal exclusively with terminology, symbols, packaging, marking or labelling requirements’. As the Appellate Body explained,

the ‘characteristics’ of a product include […] any objectively definable ‘features’, ‘qualities’, ‘attributes’, or other ‘distinguishing mark’ of a product. Such ‘characteristics’ might relate, inter alia, to a product’s composition, size, shape, colour, texture, hardness, tensile strength, flammability, conductivity, density, or viscosity.1026

The Appellate Body further noted that product characteristics may be prescribed or imposed in either a positive form (i.e. that products must possess certain characteristics) or a negative form (i.e. that products must not possess certain characteristics).

Standards, on the other hand, are defined as any document ‘approved by a recognized body, that provides […] rules, guidelines or characteristics for products or related processes and production methods, with which compliance is not mandatory’.1027 Standards are regulated less strictly in the tbt.

Regulations or standards, which may refer to any life-cycle stage of a product, are potential non-tariff barriers to trade. The tbt defines the circumstances under which such measures are allowed and the conditions that must be met in their adoption and application. The agreement sets out a national treatment and mfn requirement.1028 It moreover requires that technical regulations be not ‘more trade-restrictive than necessary to fulfil a legitimate objective’.1029 In this regard, the tbt introduces disciplines that go beyond the gatt non-discrimination approach.1030 The tbt also provides that states shall base their technical regulations on relevant international standards to the extent that such standards exist and may effectively contribute to the legitimate objective pursued.1031 It obliges member states to take all reasonable measures to ensure that local government and non-governmental bodies comply with their obligations under the agreement.1032

Whether a specific measure, or a norm that forms part of it, falls under the gatt or the tbt depends on its structure and content: a ban of specific products, such as polystyrene cups, would fall under gatt, as it constitutes an unconditional prohibition on market access for this particular product. By contrast, a measure prohibiting single-use cups from containing polystyrene would instead be considered a technical regulation and thus fall under the tbt, as it constitutes a conditional regulation of market access for a group of products (cups). The market access for this group of products is then dependent on specific product characteristics, namely whether they contain polystyrene.1033 Accordingly, a ban of certain additives in plastics would be assessed as a technical regulation of plastics under the tbt, as would be mandatory product specifications (allowable thickness etc.) of single-use plastic carrier bags in shops. A document that lays down products specifications is regarded as a standard under the tbt agreement if compliance is voluntary. Examples include labels related to the biodegradability of plastic products, provided that they are voluntary and that non-compliance does not preclude market access. Packaging regulations typically fall under the tbt, too. ppm-based measures usually also constitute technical regulations or standards and thus fall under the tbt.1034 The applicability of the tbt does not, however, suspend the applicability of the gatt, unless there is a conflict of norms stricto sensu.1035

3) The Agreement on the Application of Sanitary and Phytosanitary Measures

The sps applies to all sanitary and phytosanitary measures which may affect international trade. Sanitary and phytosanitary measures are for instance taken to minimize risks from pests and diseases, the spread of which is facilitated by the international movement of plants, animals or foodstuffs. More relevant to plastics, the sps also covers measures regulating additives and contaminants in food and beverages.1036 The agreement allows member states to adopt such measures on a national treatment and mfn basis to the extent that they are necessary for the protection of human, animal or plant life or health and based on scientific principles.1037 The sps prescribes the use of international standards but allows members to adopt stricter standards resulting in a higher level of protection if there is scientific justification.1038 It also requires that covered measures be based on a risk assessment.1039 Precautionary measures are allowed on a provisional basis, but must be reviewed within a reasonable period of time.1040 The interpretation of the precautionary approach under the sps Agreement is far more restrictive than under other treaties, such as the cbd Cartagena Protocol on Biosafety.1041

iii General Remarks Regarding the Relationship between unclos Part xii and wto Law

When contemplating the relationship between unclos Part xii and wto law, several points have to be taken into account:
  1. Relation of wto law to general international law: While wto law has been referred to as a ‘self-contained regime’,1042 there is wide agreement that wto law is not a closed system but has to be read in the context of general international law.1043 The Appellate Body held in this respect that wto agreements should not be read ‘in clinical isolation from public international law’.1044 International law applies to wto law to the extent that the covered agreements do not ‘contract out’ from it.1045 wto dispute settlement bodies have hence frequently sought ‘additional interpretative guidance’ from the general principles of international law.1046
  2. wto law and the protection of the environment: The international community repeatedly emphasized the importance of coordinating policies on trade and the environment.1047 It was also acknowledged under the aegis of the wto, including in case law.1048 Different perhaps from early rulings under the gatt, the wto Appellate Body more seriously accepted the need to find a balance between safeguarding market access and protecting the environment. It underscored the autonomy of member states ‘to determine their own policies on the environment (including its relationship with trade), their environmental objectives and the environmental legislation they enact and implement’.1049 The acceptance of environmental considerations as legitimate policy objectives particularly finds expression in the exceptions clause of the gatt1050 and its counterparts in other agreements.
  3. Relation of wto law to multilateral environmental agreements:1051
  4. Rule of conflict: wto-covered agreements do not address the issue of potential conflict of norms with other treaties. The relationship between multilateral environmental agreements and wto-covered agreements is thus governed by principles of general international law, including as reflected in vclt Articles 30 and 41, as well as by possible rules of conflict forming part of multilateral environmental agreements relevant to the case. In view of these rules, multilateral environmental obligations tend to prevail over trade obligations to the extent that they are of an integral character (as opposed to the mostly reciprocal obligations under trade law). Integral obligations are not merely reciprocal or bilateral in scope but are due to all the parties of the respective agreement (erga omnes partes) or, if general in nature, to the international community as a whole (erga omnes). A violation of such a rule does hence infringe on the rights of all the other states parties to the agreement or all states, respectively. As Pauwelyn expounds:

In summary, when integral obligations are involved, conflicting wto rules must normally give way […] irrespective of whether the multilateral environmental rule comes earlier or later in time. If it comes later in time, it prevails as the lex posterior under [vclt] Article 30(4)(a). If it is the earlier in time, it cannot, as an integral obligation, be validly deviated from inter se by the later wto rule pursuant to [vclt Articles 41 and 58].1052

This means, as a consequence, that integral obligations under unclos Part xii, although adopted prior to the establishment of the wto, prevail over trade obligations of a reciprocal nature to the extent that there is a true conflict between the norms. This conclusion is in line with unclos Article 311, which focuses on the mutual supportiveness between the convention and other agreements1053 and according to which unclos prevails over later inter se agreements to the extent that they are incompatible with the effective execution of the object and purpose of unclos or its basic principles.1054

  • Mutual supportiveness and treaty interpretation: There is no true conflict of norms as long as the norms can be interpreted in a compatible way, allowing them both to apply in a mutually supportive way. Treaty interpretation is, therefore, a valuable means for avoiding such conflicts.1055 In the interpretation of wto-covered agreements, reference to multilateral environmental agreements may be necessary in order to appropriately capture an internationally agreed meaning of environment-related terms.1056 wto dispute settlement bodies draw their competence to consult such agreements from Article 3(2) dsu in conjunction with Article 31(3) vclt. Pursuant to Article 3(2) dsu, wto panels and the Appellate Body are required to rely on the general rules of interpretation of public international law, including vclt Article 31(3)(c) and the principle of systemic integration. Wherever relevant and applicable, unclos Part xii and other environmental agreements thus form part of the interpretative background of legal provisions under wto law.1057 The competence of wto dispute settlement bodies to examine non-wto rules (and their obligation to do so) is also reflected in Article 11 of the dsu and allows for more coherence between the different fields of law.1058 It is further strengthened by a reference to sustainable development in the preamble to the Marrakesh Agreement. There is, however, certain inconsistency in wto case law with regard to the question of whether there is a need for congruent membership for non-wto agreements to be taken into account.1059 The increasingly integrative approach especially by the Appellate Body towards multilateral environmental agreements arguably reflects increasing environmental concerns and the growing importance of the concept of global commons in international law.1060

  • Impact on policy space: Multilateral environmental treaties have a potential to strengthen the member states’ authority to enact environmental legislation under the wto regime. International environmental obligations, such as defined in unclos Part xii or other multilateral environmental agreements, play an important role in the definition of the scope of the member states’ regulatory autonomy under wto law. There is a general presumption of mutual supportiveness between such instruments and wto-covered agreements.1061 That is to say, whenever a state is required to adopt a measure by an international treaty, this measure is presumed to be consistent with wto obligations. However, in the case of unclos Part xii, the situation is slightly more complex: unclos does not directly require trade measures to be taken but sets out principles and objectives instead, and leaves to its parties a wide room to manoeuvre in the implementation of their obligations. While trade-related measures may be an efficient and effective means to achieve the objectives of the treaty, the need to take such measures is not spelled out. Yet, trade measures, including, for instance, bans of microbeads in products and of other non-recoverable plastics destined to end up in waterways, may prove necessary in order to effectively protect the marine environment from microplastics, taking into account the specific level of protection pursued by that state. Consistency of such measures with wto law strongly depends on their exact design and has to be examined on a case-by-case basis.1062

iv The Role of wto Law with Regard to Domestic Implementation, Cooperation and Unilateral Enforcement

As we have seen in the previous section, the implementation of unclos Part xii requires both international and regional cooperation through harmonized policies, the definition of common standards and support for developing countries, as well as measures at the national and, where appropriate, local levels to ensure the implementation and enforcement of the internationally agreed standards. The legal concept of common concern of humankind as developed by Cottier and others1063 addresses these levels of action in relation to global problems and goes further into the question of how the creation of global public goods can be strengthened by a state or group of states in the interest of the international community when confronted to institutional deficiencies, the refusal of other states to cooperate due to the pursuit of purely national interests, and free riding. The concept ‘seeks to structure the interactive process of producing public goods by defining duties to negotiate and cooperate, the obligations to do homework, and the scope of second best unilateral action of States or of the EU furthering solutions to the problem identified’.1064

The concept of common concern is based on the assumption that ‘collective action problems occurring in the process of globalisation are mainly caused by the lack of appropriate and effective global institutions that ensure the sustainable production of global public goods’.1065 It further assumes that issues of common conern are those that ‘inevitably transcend the boundaries of a single state and require collective action in response’.1066 When collective action problems threaten the international system as a whole, there is a need to ‘secure that all countries alike are engaged in making contributions and commitments to their mutual support, commensurate with their levels of social and economic development and powers they may exert’.1067 According to the concept, recognition by the international community of a grave and shared problem as a common concern of humankind triggers an enhanced duty to negotiate and cooperate in the first place, but also a firm obligation for each state to address the problem domestically, including, as the case may be, by regulatory means (obligation to to homework).1068 Under specific circumstances, the concept also supports the use of unilateral trade measures against free riding. International trade regulation, and wto law in particular, has implications at all these levels of action: international cooperation, domestic implementation and unilateral enforcement measures.

With regard to marine plastic pollution,1069 states can choose between a broad range of domestic measures in fulfilment of their obligations, including: product bans; packaging regulations (both with regard to packaging quantity and quality); market-based instruments such as taxes and levies; technical minimum standards, for instance with regard to the recyclability, biodegradability or durability of products; labels; legal requirements related to extended producer responsibility; etc. Such measures will primarily target domestic behaviour. However, domestic measures, including, for instance, sales regulations of plastic bags, often include provisions that regulate trade specifically or have impacts on trade.

When taxes, bans, mandatory standards and other measures have obstructive effects on international trade in the goods subject to respective regulations (or like products), they are challengeable under wto law. If affected countries decide to bring a case before a wto panel, the measure will be tested for its consistency with wto-covered agreements. In order to justify a measure that, for its trade-restrictive effect, is incompatible with any provision under the gatt, a state must prove that the measure is adopted in pursuance of a legitimate policy objective and fulfils the restrictive conditions as set out in the agreement.1070 wto jurisprudence suggests that this proof is difficult to establish.

A state can more easily justify a measure if it manages to prove that the measure is necessary for the implementation of an international standard, private or as defined in a multilateral environmental agreement. In the absence of common standards, serious efforts to cooperate with potentially affected countries are usually required.1071 Cooperation, collective action and conformity with international standards generally make a strong case in favour of the measures taken. Besides that, the wording and design of the measure play a fundamental role. An arbitrarily discriminatory design of the measure, disguised protectionism, ‘unnecessary’ unilateralism and unreasonable interferences in the domestic affairs of other states are hardly justifiable under wto law.

In this sense, international trade regulation may be seen as a constraining factor in the free implementation of environmental obligations, and of unclos Part xii and related obligations in particular. Generally speaking, trade law disciplines states in the adoption of measures, particularly with regard to arbitrariness and discriminatory treatment. It does particularly curtail the states’ freedom to take unilateral actions and gives preference to concerted action instead. The same preference can be derived from Article 1 of the UN Charter and is reflected in Rio Principle 121072 and Agenda 21.1073 States have thus an obligation to seek compatible solutions through cooperation, which is an obligation of conduct.1074

However, sometimes cooperation does not give a sufficient answer to collective action problems and the problem of free riders benefitting from the efforts taken by others. Free riding potentially impairs the positive effects of international cooperation in a specific field and frustrates legitimate expectations. If, by way of assumption, a number of states commonly agree to apply strict standards in the production and transport of plastics and plastic products in order to avoid pellet loss, another state not joining the cooperative effort will possibly benefit from the situation and expand its market share due to lower production costs. Business companies may outsource production to such countries where they benefit from lower environmental standards.

Unilateral trade restrictions may provide an effective means to address environmental concerns and the problem of free riders.1075 wto law provides for justifiable exceptions, but, in the absence of international treaties and common action, it usually requires a full use of diplomatic means prior to the adoption of the measure, including serious international negotiations with potentially affected states.1076 Only if affected states refuse to negotiate in good faith may unilateral trade measures be a legitimate option.1077 Exhaustion of diplomatic means can be time-consuming, while trade measures allow for a relatively fast reaction. The concept of common concern therefore suggests a revision of the doctrine of extraterritorial effects of domestic law and the of law of sanctions and countermeasures in support of addressing collective action problems in the pursuit of creating global public goods. Specifically, it suggests that the introduction of differential tariffs and additional tariff lines for sustainable modes of production of a specific good may be justified under gatt Article xx and related provisions when in support of a solution to a problem that was identified by the international community as an issue of common concern.

Like in the case of marine plastic pollution, ‘[h]arm to a matter of common concern is often widespread and diffuse in origin, making it difficult if not impossible to rely on traditional bilateral notions of state responsibility to enforce international norms’.1078 With regard to compliance and enforcement of the obligations to cooperate and do homework, Cottier and others note that ‘problems of vetoing decisions in the Security Council and frequent reliance upon consensus diplomacy in international organizations require implementation to be backed up by individual states’. They call on large markets to use their leverage and bargaining power and to take action against states that do not comply. Economic and trade sanctions should serve as a means of exerting pressure in this context. However, wto law allows such measures only to a very limited extent.1079 Countermeasures in terms of withdrawal of concession can only be taken with regard to products that are directly related to the alleged violation. The concept therefore argues in favour of future acceptance within wto law of measures taken in response to a common concern of humankind, whether or not they are directly linked to the targeted product. More generally, it argues in favour of a public interest standing and the possibility of taking lawful countermeasures1080 on behalf of the international community in the sense of ilc Draft Articles 48 and 54, respectively, on state responsibility.1081

Conclusion of Section C

A closer examination of the relationship between unclos Part xii and wto law underscores the importance of clear internationally agreed environmental standards. With regard to plastics, such standards would potentially clarify the content of state obligations under unclos Part xii and provide valuable guidance on the kind of implementing measures that are justifiable under wto law. This being the case, an international agreement that defines such standards would promote coherence between the two regimes and their mutual supportiveness. A firm duty to closely cooperate in the fight against marine plastic pollution and define common and effective standards does not only emerge from unclos itself, but, according to a modern conception of international law, is further strengthened by the fact that the international community has repeatedly acknowledged and underlined the gravity and global scope of the problem.

Regardless of its restrictive effects, trade law does not in any way exempt states from their environmental obligations. All to the contrary: as discussed above, in the event of a true conflict of norms, integral environmental obligations usually prevail over trade obligations that are reciprocal or bilateral in scope. In view of the supposed mutual supportiveness of the two regimes (and in avoidance of a conflict of norms), wto rules do not in principle prevent states from taking measures to address environmental concerns or enforce environmental policies. If such measures are based on or backed by multilateral efforts, which are reflected in multilateral environmental agreements and other instruments, they are more easily justified even if there are extraterritorial effects. Reference to such (external) instruments by wto dispute settlement bodies is increasingly common, both in their legal assessment of a specific measure and the interpretation of covered agreements more generally.1082 Assuming that the concept of common concern as described by Cottier and others gains a foothold in international law, extraterritorial effects of domestic measures can also be justified if they serve to solve an issue of common concern. The same applies to trade measures directed against free riders in matters of common concern.

D Multilateral Environmental Agreements Relevant to Marine Plastic Pollution Mitigation

Other fields that are relevant to the mitigation of plastic pollution from land-based sources include the protection and preservation of marine and coastal biodiversity (i), the law related to the management of hazardous chemicals and wastes (ii), the management of watercourses (iii), the prevention of sea-based marine pollution (iv) and climate change mitigation (v).

i The Protection and Preservation of Marine Species and Ecosystems

Marine plastic debris and microplastics pose a severe threat to marine species and ecosystems. In 2016, 817 marine species were identified to be affected by marine debris, especially plastics.1083 Effects include ingestion, entanglement, the effects of microplastics and persistent, bioaccumulative and toxic substances, habitat alterations, dispersal via rafting and the transport of invasive alien species, as well as ecosystem-level effects. Microplastics are present in all marine habitats and readily available to every level of the food web. They provide a new habitat in the oceans for microbial communities and can be absorbed by the tissue of marine organisms or transmit hazardous chemicals to it. Plastics and their regulation are therefore relevant to multilateral environmental agreements and other instruments dealing with the protection of biological diversity and marine living resources. Respective institutions have been addressing the issue with increasing emphasis. These particularly include different treaty bodies of the cbd and the Convention on the Conservation of Migratory Species of Wild Animals (cms).1084

1) The Convention on Biological Diversity

The cbd was adopted at unced in 1992 and entered into force in 1993. It is hosted by UN Environment and nearly universally ratified.1085 The convention’s objectives include the conservation of biological diversity, the sustainable use of its components and the fair and equitable sharing of the benefits arising out of the utilization of genetic resources.1086 For the purpose of the convention, the term biodiversity includes diversity within species, between species and of ecosystems.1087 The convention is based on the ecosystem approach.1088 It further stresses the importance of scientific assessment, technology transfer and stakeholder involvement. The cbd has a protocol on living modified organisms1089 and one on access to genetic resources and the sharing of benefits.1090 Its institutional set-up includes, along with the conference of the parties and the secretariat, the Subsidiary Body on Scientific, Technical and Technological Advice (sbstta) and the Subsidiary Body on Implementation (sib). The gef operates as the financial mechanism of the agreement. The convention requires countries to prepare a national biodiversity strategy or action plan. These strategies and action plans are the principal instruments for implementing the convention at the national level. A clearing-house mechanism has been established under the convention in order to facilitate implementation, including in view of the Strategic Plan for Biodiversity 2011–2020.1091 The mechanism provides effective information services in order to promote and facilitate scientific and technical cooperation, knowledge sharing and information exchange.

The cbd cop identified seven thematic programmes of work, one of which is marine and coastal biodiversity. Increasing attention is given to the impacts of marine debris on marine and coastal biodiversity. In its work, the cbd closely collaborates with the gef Scientific and Technical Advisory Panel (gef-stap).1092 Shortly after the 5th International Marine Debris Conference in Honolulu and the adoption of the Honolulu Commitment in 2011,1093 the gef-stap circulated a report on marine debris in which it stressed the global dimension of the problem.1094 A year later, the cbd Secretariat and the gef-stap co-published an extensive study on the impacts of marine debris on biodiversity.1095 The cbd also convened an expert workshop on marine debris in Baltimore, United States, in December 2014.1096 In 2016, it published a second study on prevention and mitigation of marine debris.1097 The study includes a list of examples of management tools and measures with a focus on plastics. In the same year, parties to the cbd adopted the ‘voluntary practical guidance on preventing and mitigating the impacts of marine debris on marine and coastal biodiversity and habitats’.1098 The document suggests a detailed list of approaches and priority actions, including the promotion of ‘structural economic changes that would reduce the production and consumption of plastics, increase production of environmentally friendlier materials, and support the development of alternative materials’. Further priority actions include increasing recycling and reuse and supporting ‘an enabling environment for these changes through capacity-building, regulations and standards and cooperation among industry, governments and consumers’.1099 Proposed actions are closely related to the measures as suggested by UN Environment in its marine litter legislation toolkit published a few months earlier.1100 With regard to plastics, they play a fundamental role in the national implementation of unclos Part xii obligations, even though they are not legally binding.1101

In 2018, the cbd cop urged its parties to increase their efforts with regard to avoiding, minimizing and mitigating the impacts of plastic pollution on marine and coastal biodiversity and habitats.1102 The cop cbd is currently in the process of including a target for the elimination of plastic waste discharge in the Post-2020 Global Biodiversity Framework.1103

2) Convention on the Conservation of Migratory Species of Wild Animals

Another convention that is administered by UN Environment and concerned with the impacts of plastics on marine biodiversity is the cms. The cms is dedicated to the conservation of migratory species, their habitats and migration routes on a global scale. It promotes concerted action among the countries concerned with the migration of certain species. Appendix i contains a list of migratory species that are threatened with extinction. The parties are obliged to make every effort to protect these animals and their habitats and mitigate obstacles to their migration. Appendix ii lists migratory species that need or would significantly benefit from international cooperation. The convention encourages the conclusion of agreements to their conservation and management, and acts as a framework convention for seven species-oriented agreements and several memoranda of understanding that have been concluded under its auspices. Species covered by such agreements include, among other species, turtles, sharks, marine mammals and migratory birds with marine migration routes. Each of the agreements concluded in this context can be tailored to the specific needs of a certain range of migratory species, which is an important strength of the cms family.

In 2011, the cms cop acknowledged the negative impacts of marine debris on substantial numbers of migratory marine wildlife that are threatened with extinction.1104 It required the secretariat to provide available information on the impact of marine debris on listed migratory species to the Scientific Council, a subsidiary body of the convention providing scientific advice for the identification of research and conservation priorities. The cop further required the parties to adopt national action plans addressing the negative impacts of marine debris, and to properly cover the topic in their national reports. cms commissioned three reports on the management of marine debris, vessel best practice, and public awareness and education, respectively.1105 Based on these reports, the cop invited its members in 2014 to implement cost-effective measures for the prevention of debris and encouraged them to establish public awareness campaigns.1106 Following up on the unea resolutions on marine litter and microplastics, the cms cop called on its members at its 2017 and 2020 meetings to collect and exchange information on the impact of plastic pollution on migratory species, especially Annex i and ii species, and take appropriate measures to protect them.1107 In 2021, the cms Secretariat published a report supporting evidence that migratory species are likely to be among the most vulnerable to plastic pollution. The study focused on the impacts of plastic pollution on animals that live on land and in freshwater environments in the Asia-Pacific region. Particular attention was given to the Ganges and Mekong river basins, which together contribute an estimated 200,000 tonnes of plastic pollution to the Indian Ocean and the Pacific Ocean each year.1108

3) Other Biodiversity-related Conventions

The UN Fish Stock Agreement, which has been concluded under the auspices of unclos, sets out principles for the conservation and management of straddling and highly migratory fish stocks. The agreement facilitates the implementation of unclos and advances and expands the convention’s rules and principles in this regard.1109 It prescribes the application of the precautionary approach in this respect, as well as the use of best available scientific information.1110 It also requires its parties to minimize pollution and wastes and protect biodiversity in the marine environment. With respect to plastics, parties are particularly concerned with the issue of abandoned, lost or otherwise discarded fishing gear (aldfg). The so-called ghost nets – nets that were lost or discarded in the ocean and continue to catch target and non-target species over an indefinite period of time – cause substantial ecological and socio-economic problems. In spite of growing awareness in this respect, their number is rapidly increasing, and so are their impacts. aldfg is therefore addressed by a number of institutions dealing with marine living resources and sea-based pollution sources in the first place, including the fao.1111

Other biodiversity-related conventions may also be relevant with respect to the protection and preservation of the marine environment in general and plastic pollution mitigation from land-based sources in particular. In the South China Sea case, the tribunal referred to the appendices of cites to point out the fact that the species at stake were generally considered to be threatened with extinction.1112 The Ramsar Convention on Wetlands,1113 on the other hand, is relevant to plastic pollution in the context of site management. The convention provides a framework for national action and international cooperation for the conservation and wise use of wetlands and their resources. For this purpose, each state party has to designate suitable wetlands for the List of Wetlands of International Importance (Ramsar List).1114 Litter is a common problem in many areas covered by the list, and a number of large clean-up events have been organized.1115

Marine plastic debris is also a concern under the International Convention for the Regulation of Whaling.1116 The iwc held three workshops on entanglement of large whales in 2010, 2011 and 2015, respectively,1117 as well as three workshops on marine debris in 2013, 2014 and 2019. The 2013 workshop focused on threats, knowledge gaps and further research requirements.1118 The follow-up workshop focused on the mitigation and management of threats to cetaceans from marine debris. The workshop report includes a number of recommendations with regard to further work on marine plastic debris.1119 The third workshop reviewed the latest evidence of ingestion, entanglement, microdebris and toxicology.1120 The iwc assesses the impacts of microplastics on cetaceans in its Pollution 2020 project.1121

With regard to their work on plastic pollution, the cbd, cms and iwc emphasized the importance of cooperation among them and with further institutions, including imo, fao, iso and the regional conventions.

ii Waste Management and the Regulation of Wastes and Hazardous Chemicals

Inadequate disposal behaviours and insufficient or unsound waste management are major sources of plastic pollution. Also, plastics contain chemicals that are inclined to migrate and leak into the environment. At the same time, they absorb toxic chemicals from ambient seawater. When ingested, they transfer the chemicals to marine organisms. These toxic substances are susceptible to bioaccumulate throughout the food chain. Both waste management law and the regulation and control of hazardous chemicals are thus of fundamental importance for the mitigation of marine plastic pollution from land-based sources. From an international law perspective, the two issues are dealt with in a single cluster of multilateral environmental agreements, generally referred to as the chemicals and wastes cluster. The cluster includes the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal,1122 the Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade1123 and the Stockholm Convention on Persistent Organic Pollutants.1124 It is also closely related to the Minamata Convention on Mercury.1125 The four conventions share a life-cycle approach to chemicals and waste management. Their common objective is to protect human health and the environment from hazardous chemicals and wastes and to assist parties to manage these at different stages of their life cycle. Because of the thematic and organizational proximity, the conferences of parties to the Basel, Rotterdam and Stockholm Conventions decided to enhance cooperation and coordination among them and launched a synergies process in 2008.1126 Among the foursome of the chemicals and wastes agreements, the Basel and Stockholm Conventions are especially relevant to the regulation of plastic pollution from land-based sources.

1) The Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal

The Basel Convention aims at protecting the environment and human health from negative impacts of hazardous wastes and other wastes throughout their lifecycle. It requires its parties to reduce the generation of hazardous and other wastes to a minimum and dispose of them domestically where possible and in an environmentally sound manner.1127 The convention thus aims to reduce the generation and international movement of hazardous wastes and promotes environmentally sound waste management. It applies the concept of waste management hierarchy in this regard, a concept that gives priority to the least environmentally harmful management or disposal option (see Figure 16).1128

Figure 16
Figure 16
Waste management hierarchy
Author

From a substantive point of view, the Basel Convention restricts the transboundary movement of hazardous and other wastes. Export of covered wastes requires prior informed consent by the states of import and transit.1129 Exports to Antarctica, to non-parties or to parties having banned the import of hazardous wastes are prohibited.1130 Since December 2019, when the so-called Ban Amendment entered into force, exports from oecd countries to non-oecd countries have also been prohibited.1131 The amendment reflects wide agreement among parties that developing countries are particularly vulnerable to the negative effects of hazardous wastes and need special protection. Contracting parties can, however, circumvent this prohibition by concluding bilateral, multilateral or regional agreements.1132 The Basel Convention explicitly provides for this possibility if these agreements meet the standard of the convention and do not run counter to its purpose. In this context, the Basel Convention explicitly refers to the specific needs of developing countries.

Developing countries are the main importers of various types of waste. Especially before China and a number of other countries in the East Asian and Pacific region banned the import of non-industrial plastic waste, plastic waste streams often ended up in East and Southeast Asian countries, where the formal and informal recycling and disposal sectors were unable to cope with the imported waste volumes. Until recently, however, plastic waste streams have not been covered appropriately by the scope of the Basel Convention. Solid plastic wastes were typically considered non-hazardous under the convention.1133 Only plastics disposed of in household wastes and collected were covered by the convention as ‘other wastes’ under Article 1(2) when subject to transboundary movement.1134 In view of increasing awareness of the negative impacts of marine litter and microplastics in particular, and of respective assessments presented on this issue at the UN Environment Assembly, the cop to the Basel Convention decided in May 2019 to adjust the convention’s scope with regard to plastics through the so-called plastic amendments.1135 Lower-quality, mixed and contaminated plastics are now fully covered by the Basel Convention. These plastics are difficult to recycle and therefore usually end up in landfills. They also make up the majority of the plastic scrap exported to low or lower-middle-income countries.1136 General obligations with regard to waste minimization, sound waste management and the regulation of transboundary movement therefore apply to these plastics now.1137 As a consequence, contracting parties are, for example, not allowed to import mixed plastic wastes from non-parties (such as the US) any more, as long as there are no bilateral or regional agreements between these states within the meaning of Article 11 of the Basel Convention.

The cop to the Basel Convention adopted a series of non-binding technical guidelines that assist parties in ensuring the environmentally sound management of hazardous and other wastes. Some of them are relevant to plastics, including, for instance, the ones dealing with household wastes, waste incineration, engineered landfills, the sound management of waste tyres, and the sound management of wastes containing persistent organic pollutants.1138 In 2002, the cop also adopted technical guidelines for the identification and environmentally sound management of plastic wastes and for their disposal.1139 The original version of the document focuses on technical aspects of the management of plastic wastes, and of plastic recycling in particular. As it does not address the problem of marine plastic debris and microplastics, or health and environmental impacts of plastics in general, the cop decided at its fourteenth meeting in May 2019 to update the guidelines accordingly.1140 The cop also followed a suggestion by the Open-Ended Working Group (oewg),1141 an advisory body under the Basel Convention, to establish a new Partnership on Plastic Waste1142 in addition to the Partnership on Household Waste that was established at bc cop 13 in 2017 for further exploring the environmentally sound management of household wastes.1143 The Plastic Waste Partnership comprises more than a hundred actors from governments, private sector and civil society organisations. Under its auspices, numerous pitot projects have been launched to promote the implementation of the 2019 plastic waste amendments. Finally, the cop decided to take advantage of the convention’s potentials with regard to public awareness, data collection and information exchange1144 and took note of the capacity-building work by the convention’s regional and coordinating centres, which had been encouraged at bc cop 13 to work on the impact of plastic waste, marine plastic litter and microplastics.1145

The Basel Convention is administered by UN Environment and currently has 188 parties.1146 In 1999, the Basel Protocol on Liability and Compensation was adopted.1147 Once it enters into force, it will apply to damage ‘due to an incident occurring during a transboundary movement of hazardous wastes and other wastes and their disposal, including illegal traffic’.1148 The protocol will provide for strict civil liability and, as the case may be, fault-based liability.1149 Three years after the adoption of the protocol, the legal and institutional framework of the Basel Convention has been further complemented by the establishment of a compliance committee. The committee assists parties in complying with their obligations under the convention and facilitates, monitors and reports on implementation.1150

2) The Stockholm Convention on Persistent Organic Pollutants

The Stockholm Convention on Persistent Organic Pollutants is another important agreement associated with the chemicals and wastes cluster. It was adopted in 2001 and entered into force in 2004. It currently has 184 parties.1151 ‘Mindful of the precautionary approach’, the convention aims at protecting human health and the environment from the exposure to pops.1152 pops are organic chemical substances that, when released into the environment, remain intact for exceptionally long periods of time (as they resist degradation), become widely distributed throughout the environment, accumulate in the fatty tissue of living organisms, are susceptible to bioaccumulation and are toxic to both humans and wildlife. The Stockholm Convention requires its parties to take measures to eliminate or reduce the release of pops into the environment. Specifically, parties shall prohibit the production and use of the chemicals listed in Annex A and ban their import and export (unless the party has a specific exemption that applies to the case). They moreover shall restrict the production and use of the chemicals listed in Annex B.1153 Furthermore, parties have to take measures to reduce or eliminate releases from unintentional production for chemicals listed in Annex C and to reduce or eliminate releases from stockpiles and wastes.1154 Initially, 12 chemicals were listed under the three annexes, including a range of pesticides, industrial chemicals and by-products. Since then, several new pops have been added to the list.

The Stockholm Convention covers a range of substances that have been widely used in the production of plastics. Such substances include, as one example out of many, polybrominated diphenyl ethers (pbdes), which have been used since the 1970s as additive flame retardants in a wide range of consumer products such as car interiors or upholstery (made from polyurethane foam) and housings or casings of electronic or electrical equipment (made from abs or other polymers).1155 While the production of listed chemicals has declined since they are subject to international regulation, many products that contain such substances are still in use or in their disposal stage.1156 Both end-of-life vehicles and electronic wastes are still traded to or dumped in developing countries, where sound disposal of these goods is difficult.

Annex C to the Stockholm Convention covers pops that may be released from uncontrolled plastic waste combustion, including dump fires and other open burning practices. In particular, incineration of pvc plastics may generate a range of irritant, corrosive and toxic substances such as polychlorinated dibenzodioxins (pcdds) and polychlorinated dibenzofurans (pcdfs), which are listed in Stockholm Convention Annex C.1157 In the absence of the necessary infrastructure for a sound management of wastes and affordable, accessible and safe disposal facilities, open burning often seems the cheapest and easiest means of volume reduction and disposal of plastics. Article 5 of the Stockholm Convention requires states to take measures to reduce and possibly eliminate releases of the chemicals listed in Annex C. To this purpose, parties are strongly recommended to undertake measures against open and other uncontrolled burning of wastes, including the burning of landfill sites.1158

The annexes to the Stockholm Convention moreover cover a broad range of chemicals that originate from anthropogenic sources and are widely present in aquatic environments. Plastic fragments, and microplastics in particular, tend to accumulate such substances from the ambient seawater at their surface. When ingested, they serve as a vector for the contaminants to animal tissues and the food chain.

The listing of additives in plastics with acknowledged endocrine-disrupting properties is currently being discussed.1159 Such additives, which include phthalates, are widely used in plastics.

The Stockholm Convention is complemented by soft law instruments such as the Strategic Approach to International Chemicals Management (saicm), a policy framework to promote chemical safety around the world. It was adopted by the First International Conference on Chemicals Management (iccm) in 2006. The framework’s objective is ‘the achievement of the sound management of chemicals throughout their life cycle so that by the year 2020, chemicals are produced and used in ways that minimize significant adverse impacts on the environment and human health’.1160 The iccm has adopted eight resolutions on emerging policy issues and called for cooperative action in their regard. Two of these resolutions address manufactured nanomaterials and endocrine-disrupting chemicals as used in plastics, respectively.

iii International Watercourses

Rivers and streams are an important pathway allowing plastics to travel from inland places to the shore. A study found that of the total 100,887 river and stream outlets included in the model, about 32,000 locations discharge macroplastic waste into the ocean, resulting in 0.8 to 2.7 million tonnes entering the marine environment in 2015. About 1,600 rivers account for 80 per cent of global riverine plastic emissions to the ocean. Urban rivers, including small rivers, in Southeast Asia and West Africa have been identified as the main hotspots for plastic emissions.1161 The regulation of watercourses and their management is, therefore, crucial for the prevention of marine plastic debris from land-based sources. Yet, while environmental concerns have been relevant in the development of this body of law, its regulatory impacts on plastic pollution prevention remains limited. Existing instruments do not add much to the global and regional frameworks addressing land-based sources of marine pollution. Also, plastics seem not to figure on the agenda of the relevant bodies in this field. In many regions, assessments of plastic pollution in rivers and its impacts on these environments are, therefore, still at the beginning.

The core principles of international watercourse law include the principle of equitable and reasonable utilization, the obligation not to cause significant damage, the obligation to cooperate and the obligation of prior notification.1162 These principles are enshrined in the UN Watercourses Convention1163 and the unece Water Convention,1164 as well as in a number of bilateral and regional treaties. Part iv of the UN Watercourses Convention deals with the protection and preservation of ecosystems and the prevention, reduction and control of pollution. Parties to the convention have to protect the water quality and to cooperate to this aim. At the request of a party, riparian states have to consult on measures such as the establishment of ‘lists of substances the introduction of which into the waters of an international watercourse is to be prohibited, limited, investigated or monitored’.1165 Such lists of substances have been established under a number of agreements.1166 The unece Water Convention, on the other hand, obliges its parties to apply the precautionary principle and the polluter pays principle in this regard.

The two conventions also recognize the important link between freshwater and marine pollution: in its Article 23, the UN Watercourses Convention provides that watercourse states ‘shall […] take all measures with respect to an international watercourse that are necessary to protect and preserve the marine environment, including estuaries, taking into account generally accepted international rules and standards’. The provision essentially reflects the object and purpose of unclos Part xii but does not add substance to it. Much like unclos Article 207, it obliges states to ensure that the measures they are planning or implementing on an international watercourse ‘be at least consistent with the pertinent rules and standards governing the protection and preservation of the marine environment’.1167

The unece Water Convention obliges riparian parties to cooperate and harmonize their policies ‘aimed at the protection of the environment of transboundary waters or the environment influenced by such waters, including the marine environment’.1168 Moreover, parties are required to establish joint bodies on transboundary water resources and to cooperate through them with such bodies established by coastal states for the protection of the marine environment.1169

iv Prevention and Mitigation of Plastic Pollution from Sea-based Sources

The imo serves as the principal forum for the further development of rules and regulations with respect to pollution from ships.1170 The organization administers a large number of treaties on marine pollution prevention from vessels and dumping at sea, and on civil liability. As discussed above, the London Dumping Convention, its 1996 Protocol and marpol are of particular relevance to plastic pollution mitigation. The imo Secretariat repeatedly examined the implications of unclos for imo and the instruments concluded under its auspices. In an assessment of 1987, the secretariat held that unclos does not preclude the existence of special rules or their future adoption by imo but presupposes their existence and ‘depends on them for the effective implementation of its general principles’.1171 In support of sdg 14, the imo Marine Environment Protection Committee adopted an action plan in 2018 to reduce and prevent marine plastic litter from ship-based sources.1172

v Climate Change Mitigation

The vast majority of plastics are made from petrochemical products derived from fossil fuels such as petroleum and natural gas. Nearly all intermediates for plastics can be produced more cheaply from petroleum than from other sources.1173 The share of petroleum used in plastics amounts to about 5 per cent of global petroleum consumption. If trends in oil consumption and plastic production continue as expected, this share will increase to 20 per cent by 2050.1174 Petroleum fractions are either used as feedstock in the chemical plants or as energy source in the production process. The plastics industry is therefore geographically, economically and commercially linked to the fossil fuel industry and the chemical industry.

Currently, major investments are being made in plastics infrastructure in the United States, the Middle East, China and Europe. This massive capacity expansion will affect plastics production for decades and could underpin mitigation efforts.1175 The future of the petroleum industry, on which these investments are based, is in turn shaped by the climate policy objectives and commitments of the international community, such as formulated under the Paris Agreement.1176 As even small changes in the price of oil or gas can have significant consequences for the plastics industry, a shift in fossil fuel markets will fundamentally affect the long-term economic prospects of the plastics industry. A phase-out of fossil fuels ‘will force plastic producers to bear more of their upstream costs, dramatically altering the investment risk facing their production facilities’.1177

Plastic production is itself an energy-intensive and carbon-emitting process and is likely to be impacted by regulation that applies a cost to carbon. According to estimates, combined emissions from plastics production and embedded carbon could be as much as 287 billion tonnes by 2100. Net co2 emissions from plastics in the European Union could grow by as much as 76 per cent by 2050.1178 As part of its climate strategy, France therefore enacted a regulation on petroleum-based disposable plastic products in 2016. The measure forms part of France’s Energy Transition for Green Growth Act. It stipulates that, by the year 2025, at least 60 per cent of the material used to produce targeted items will have to be produced from renewable sources.1179

Climate change mitigation commitments can have an effect not only on plastic production and trade policy choices with respect to plastic goods, but possibly also on the choice between different disposal options, as these have different effects on the carbon footprint.

Conclusion of Section D

Marine plastic pollution is increasingly addressed under the aegis of the biodiversity conventions and, within their scope of application, the chemicals and waste conventions. Convention bodies and parties have acknowledged the particular threats associated with marine plastic debris and have been approaching them from their specific perspective. cbd and cms have adopted recommendations for action or developed guidelines on mitigation. The Basel Convention has adapted its scope of application and now fully covers lower-quality, mixed and contaminated plastics, which make up the majority of the plastic scrap exported to low or lower-middle-income countries. Under its auspices, the Partnership on Household Wastes and the Partnership on Plastic Waste have been established to promote action and encourage stakeholder dialogue towards the ultimate goal of eliminating the discharge of plastic waste and microplastics into the environment, in particular the marine environment. The Stockholm Convention may increase the range of hazardous substances that are regulated or banned, including with regard to substances that are used in plastics. It could therefore contribute to a more sustainable design of plastic materials and goods. The watercourse conventions, on the other hand, have not yet explored their potential role with regard to marine plastic pollution mitigation from land-based sources.

Overall, the regulatory framework related to marine plastic pollution mitigation from land-based sources remains fragmented and elusive. Owing to their particular and constrictive scope of application, none of the instruments can provide a holistic approach to plastic pollution mitigation from land-based sources in a sufficiently effective way. While increasing reception of the topic in the various relevant fora and growing institutional cooperation have a positive impact on coherence, it does not suffice to provide the necessary guidance on how to best implement unclos Part xii with regard to plastics, or facilitate compliance or enforcement.

Marine plastic pollution has been identified as a cross-cutting concern that involves different fields of law and a number of international bodies and instruments. While the subject cannot currently be assigned to a single institutional home (at least with regard to land-based sources), UN Environment seems the most central actor among international institutions in this regard. It administers not only a number of global environmental treaties that are relevant for marine plastic pollution mitigation (such as the cbd, the Basel Convention and the Stockholm Convention) but also the Regional Seas Programme, several regional seas conventions, the gpa and the gpml. UN Environment moreover has launched several studies on the matter and has gained a lot of expertise.1180 While it provides for the operational structure, UN Environment’s mandate is defined at unea, which is the political forum for action to be taken.

2 Regional Schemes

The global regime is complemented and supplemented by regional schemes, the development of which is required, ‘as appropriate’, in unclos Article 197. In the establishment of regional rules and standards, characteristic regional features, the economic capacity of developing states and their need for economic development are to be taken into account.1181 The relation between regional conventions and unclos is governed by unclos Article 237, which refers to ‘special conventions and agreements’ dealing with the protection and conservation of the marine environment. Along with specific multilateral treaties as concluded under the auspices of imo and other organizations, regional conventions are an important example in this regard. Article 237 holds that the provisions of Part xii are ‘without prejudice’ to the obligations assumed by states under such instruments, regardless of whether they were adopted before or after unclos.1182 By virtue of Article 237, priority is given to the more stringent rules, as long as they are consistent with the general principles and objectives of unclos.1183

A need for regional cooperation in marine pollution mitigation is particularly evident with regard to enclosed and semi-enclosed seas. States bordering enclosed or semi-enclosed seas are, therefore, called on to cooperate with each other and, among other things, to coordinate the implementation of their rights and duties with respect to the protection and preservation of the marine environment.1184 Enclosed or semi-enclosed seas represent geographical entities that are widely independent from the wider ocean. They often embrace highly sensitive ecosystems with relatively high numbers of potentially endemic species. As major oceanic currents play no or only a minor role in these areas, pollution does often not as easily dissipate as in other places. The usually slow renewal of such water bodies implicates that, even in the event of reversible damage, it may take very long periods of time for corresponding ecosystems to recover from pollution incidents.

Not surprisingly, some of the oldest, most comprehensive and progressive regional cooperation regimes focus on enclosed or semi-enclosed seas. This is especially true for regions mainly consisting of industrialized countries, such as the Baltic Sea region.1185 Regional cooperation has, however, also been sought by states sharing a common coastline or being part of the same archipelago. UN Environment has been the central driving force in this regard: under the auspices of its Regional Seas Programme, it established regional cooperation programmes in 14 regions, mainly comprising developing countries. Most of these programmes, as will be discussed below, are based on legal agreements.1186

Cooperation mechanisms for the protection and preservation of the marine environment or ocean governance are not confined to the UN Environment Regional Seas Programme or comparable regimes. Rather, a wide range of bodies or programmes may be active in the same geographic area. The geographic scope of these programmes or of related projects may not be congruent. While the regions covered by the Regional Seas Programme are largely defined on the basis of political considerations, gef-sponsored projects are usually based on the concept of large marine ecosystems (lmes). lmes are areas defined by purely ecological criteria for the purpose of ecosystem-based ocean management.1187

The present chapter starts with an overview on the regional schemes (A). It briefly outlines the Regional Seas Family, including with regard to the typical contents of the regional conventions and protocols on land-based sources. Two example regions are discussed in more detail. The chapter will then shed light on some particularities of these regimes, especially with regard to their specific strengths, potentials and deficiencies (B). The chapter focuses on the question of whether and to what extent regional schemes can compensate for the deficits of the global regime. Table 7 and Figure 17 give an overview of existing programmes and instruments.

A Overview on the Regional Schemes

i The Regional Seas Family

Regional schemes currently cover 18 regions. Fourteen of these regions are covered by programmes established under the auspices of UN Environment. Four more regions are covered by independent programmes that UN Environment considers as partner programmes. Together, they form the so-called Regional Seas Family. About 146 countries participate in one or more regional seas or partner programmes. Global meetings of the Regional Seas Programme are held on an almost yearly basis.

The Regional Seas Programme was initiated in 1974 and is headquartered in Nairobi. It aims to promote the sustainable management and use of marine environments, including coastal areas, foster regional cooperation for their protection and contribute to the implementation of Agenda 2030, sdg 14 and similar instruments. Seven of these programmes are directly administered by UN Environment. They cover the East Asian Seas, Mediterranean, North-West Pacific, West and Central Africa, Western Indian Ocean and Wider Caribbean regions, as well as, on an interim basis, the Caspian Sea.1188 In UN Environment-administered regions, UN Environment mainly operates through regional cooperating units (rcus). The Black Sea, North-East Pacific, Pacific, Red Sea and Gulf of Aden, ropme Sea (Persian/Arabian Gulf, Gulf of Oman and parts of the Arabian Sea), South Asian Seas and South-East Pacific regions are also covered by the Regional Seas Programme but are administered by special commissions, secretariats or other bodies.1189 Independent programmes have been concluded in the North-East Atlantic and Baltic Sea regions. UN Environment also considers the Antarctic and Arctic regions to be partner programmes (see Figure 17). While the independent programmes are not formally part of the Regional Seas Programme, they support it and participate in corresponding activities, meetings and policy discussions.1190

Figure 17
Figure 17
The Regional Seas Family
source: Adapted from UNEP, Marine Litter: A Global Challenge (UNEP 2009) 16.

The UN Environment regional seas programmes are based on (non-legally binding) action plans related to the environmental conservation and management of the regional seas while engaging states sharing a common body of water in policy coordination and cooperative efforts. The action plans are a relatively flexible tool and allow focusing on the particular environmental concerns, challenges and conditions of the respective regions. They facilitate concerted action in this regard. Most of the action plans or strategies are implemented by regional legal conventions.1191 UN Environment regional conventions on the protection of the marine environment are designed as framework conventions that envisage the adoption of more specific protocols. Protocols on land-based pollution sources have been adopted in nine regions.1192 To date, five of them have entered into force (see Table 7). Three regional seas programmes, including in the North-West Pacific, East Asian Seas and South Asian Seas regions, are not based on any legally binding instrument. The South-West Atlantic region is one of the last regions not to be covered by any (even non-legally binding) instrument.

The regimes of the North-East Atlantic region and the Baltic Sea predate the UN Environment regimes: the Oslo and Paris Conventions were adopted in 1972 and 1974, respectively, and the Helsinki Convention in 1974.1193 Like some of the instruments adopted under the auspices of the UN Environment Regional Seas Programme, the originally three independent conventions have been fundamentally revised in the aftermath of 1992 unced to now include some of the concepts and principles endorsed at the Rio Conference. The Paris and Oslo Conventions were merged and replaced by the ospar Convention.1194 The structure and approaches of both the ospar and Helsinki Conventions are different from the UN Environment model. They do not work as framework conventions but address specific issues, including land-based sources, within the convention itself in a more substantial way. The use of annexes and appendices, as well as the power of the ospar and Helsinki Commissions to adopt recommendations and, as in the case of the ospar Convention, binding decisions, allow for a relatively flexible regulation of scientific issues and a quite dynamic evolution of the regime.1195 The strong institutional setting, high commitments by the contracting parties and a solid funding base are some of the particularities of these two regimes.1196

The Arctic and Antarctic regimes are considered partner programmes, too. The Antarctic is governed by the Antarctic Treaty1197 and related instruments, including the 1980 camlr Convention.1198 The scope of the latter is particular in that it does not focus on pollution mitigation in the first place but on the conservation of living resources in the covered area. The Commission for the Conservation of Antarctic Marine Living Resources (ccamlr) and its Scientific Committee, however, address the monitoring of marine debris and its impact on the marine environment and marine species on a regular basis. By contrast, no convention has been adopted with regard to the protection of the marine environment in the Arctic region. Marine pollution in the Arctic is addressed by the Arctic Council’s Working Group on the Protection of the Arctic Marine Environment (pame). The Arctic region is, thus, the only independent regime that is not treaty-based.

Altogether, there are 14 regional conventions (one of which is not in force yet) dealing with the protection and preservation of the marine environment. Two of these conventions directly address the problem of land-based sources of marine pollution. In nine more regions, protocols on land-based sources have been adopted. Five of them have entered into force. There are at least five regions which are not covered by a convention.1199 Seven of the regional programmes do not specifically address land-based sources of marine pollution in detail and in a legally binding way. Land-based sources of marine pollution are, however, recognized as a major concern in almost all the regional programmes.1200 Also, the potentially important role the regional programmes may play in the protection of the marine environment from land-based sources is widely acknowledged.1201

Within the framework of the Regional Seas Programme, UN Environment strongly promotes action on marine litter and encourages the establishment of partnerships in this regard, including between regional seas conventions and action plans, UN bodies, funding institutions and the private sector. It promoted review and assessment activities, the adoption of regional action plans and strategies on marine litter and the participation in regional clean-up days.1202 Based on a number of regional assessment reports, UN Environment identified a knowledge gap, in combination with the lack of specific legislation, adequate law enforcement and funding, as the primary reasons for the continuing aggravation of the problem of marine litter.1203

A number of regions have adopted specific regional action plans on the sustainable management of marine litter.1204 In their action plans, participating regions all emphasized the important role of integrated waste management efforts, education and outreach, behavioural changes, implementation of economic instruments and concerted clean-up actions. They also agreed that existing legislation needed to be adapted and better enforced. The need for a harmonized marine litter monitoring strategy was also stressed in the action plans, as well as the need for national funding programmes and international support. Marine litter and microplastics are hence regularly discussed at the annual global meeting of the Regional Seas Programme.

Table 7
Regional programmes and instruments

Region

rap ma Li

Coordinating body

Convention

Protocol on land-based sources

unep administered programmes

Caspian Sea

2009*

unep

2003 Tehran Convention (eif 2006)

2012 Moscow Protocol, not yet in force

East Asian Seas (eas)

2019

unep/cobsea

Mediterranean Region

2013

unep/medu

1976 Barcelona Convention (eif 1978), rev. in 1995 (eif 2004)

1980 Athens Protocol (eif 1983), rev. in 1996 in Syracuse (eif 2008)

North-West Pacific Region (nowpap)

2008

unep

West and Central Africa Region (wacaf)

unep

1981 Abidjan Convention (eif 1984)

2012 Abidjan Protocol, not yet in force

Western Indian Ocean Region (wio)

unep

1985 Nairobi Convention (eif 1996, rev. in 2010, rev. version not yet in force)

2010 Nairobi Protocol, not yet in force

Wider Caribbean Region (wcr)

2014

unep-car/rcu

1983 Cartagena Convention (eif 1986)

1999 Aruba Protocol (eif 2010)

Non-unep administered programmes

Black Sea Region

MoU on ml 2015

bsc

1992 Bucharest Convention (eif 1994)

1992 Bucharest Protocol (eif 1994) rev. in 2009 in Sofia, rev. version not yet in force

North-East Pacific Region

2002 Antigua Convention (not yet in force)

Pacific Region

2016**

sprep

1986 Noumea Convention (eif 1990)

Red Sea and Gulf of Aden

2008*

persga

1982 Jeddah Convention (eif 1985)

2005 Jeddah Protocol, not yet in force

ropme Sea Area

ropme

1978 Kuwait Convention (eif 1979)

1990 Kuwait Protocol (eif 1993)

South Asian Seas (sas)

2018

sacep

South-East Pacific Region

2007*

cpps

1981 Lima Convention (eif 1986)

1983 Quito Protocol (eif 1986)

Independent programmes

Antarctic Region

ccamlr

1959 Antarctic Treaty (eif 1961); 1980 camlr Convention (eif 1982)

Arctic Region

Artic Council; pame

Baltic Sea

2015

helcom

1972 Helsinki Convention (eif 1974), rev. in 1992 (eif 2000)

lbs are addressed in the convention

North-East Atlantic Region

2014

ospar Commission

1992 ospar Convention (eif 1998), combining former Oslo and Paris Conventions)

lbs are addressed in the convention

rap Ma Li = Regional action plan on marine litter

eif = Entry into force

lbs = Land-based sources of marine pollution

MoU = Memorandum of understanding

* Strategic objectives in review document; no specific action plan on marine litter

** Regional Waste and Pollution Management Strategy; marine litter is not the main focus

Table 8
Membership of regional conventions and protocols on land-based sources

Region

Convention/lbs protocol

Parties

unep administered programmes

Caspian Sea

2003 Tehran Convention

Azerbaijan, Iran, Kazakhstan, Russian Federation, Turkmenistan

2012 Moscow Protocol

East Asian Seas

Mediterranean Region

1976/95 Barcelona Convention

Albania, Algeria, Bosnia and Herzegovina, Croatia, Cyprus, Egypt, European Union, France, Greece, Israel, Italy, Lebanon, Libya, Malta, Monaco, Montenegro, Morocco, Slovenia, Spain, Syria, Tunisia, Turkey

1980 Athens Protocol

Albania, Algeria, Bosnia and Herzegovina, Croatia, Cyprus, Egypt, European Union, France, Greece, Israel, Italy, Lebanon, Libya, Malta, Monaco, Montenegro, Morocco, Slovenia, Spain, Syria, Tunisia, Turkey

1996 Syracuse Protocol

Albania, Croatia, Cyprus, European Union, France, Greece, Israel, Italy, Malta, Monaco, Montenegro, Morocco, Slovenia, Spain, Syria, Tunisia, Turkey

North-West Pacific

West and Central Africa Region

1981 Abidjan Convention

Angola, Benin, Cameroon, Congo, Côte d’Ivoire, Democratic Republic of Congo, Gabon, Gambia, Ghana, Guinea, Guinea-Bissau, Liberia, Mauritania, Namibia, Nigeria, Senegal, Sierra Leone, South Africa and Togo

2012 Abidjan Protocol

Western Indian Ocean Region

1985 Nairobi Convention

Comoros, France, Kenya, Madagascar, Mauritius, Mozambique, Seychelles, Somalia, Tanzania, South Africa

2010 Nairobi Convention

2010 Nairobi Protocol

Wider Caribbean Region

1983 Cartagena Convention

Antigua and Barbuda, Bahamas, Barbados, Belize, Colombia, Costa Rica, Cuba, Dominica, Dominican Republic, France, Grenada, Guatemala, Guyana, Jamaica, Mexico, Netherlands Antilles, Nicaragua, Panama, St Kitts and Nevis, Saint Lucia, St. Vincent and the Grenadines, Trinidad and Tobago, UK, USA, Venezuela

1999 Aruba Protocol

Antigua and Barbuda, Bahamas, Belize, Costa Rica, Dominican Republic, France, Grenada, Guyana, Jamaica, Panama, Saint Lucia, Trinidad and Tobago, USA

Non-unep administered programmes

Black Sea Region

1992 Bucharest Convention

Bulgaria, Georgia, Romania, Russian Federation, Turkey and Ukraine

1992 Bucharest Protocol

Bulgaria, Georgia, Romania, Russian Federation, Turkey and Ukraine

2009 Sofia Protocol

North-East Pacific Region

2002 Antigua Convention

Pacific Region

1986 Noumea Convention

Australia, Cook Islands, Federated States of Micronesia, Fiji, France, Marshall Islands, Nauru, New Zealand, Papua New Guinea, Western Samoa, Solomon Islands, USA

Red Sea and Gulf of Aden

1982 Jeddah Convention

Djibouti, Egypt, Jordan, Saudi Arabia, Somalia, Sudan, Yemen

2005 Jeddah Protocol

ropme Sea Area

1978 Kuwait Convention

Bahrain, Iran, Iraq, Kuwait, Oman, Qatar, Saudi Arabia, United Arab Emirates

1990 Kuwait Protocol

Bahrain, Iran, Kuwait, Oman, Qatar, Saudi Arabia

South Asian Seas

South-East Pacific Region

1981 Lima Convention

Chile, Colombia, Ecuador, Panama, Peru

1983 Quito Protocol

Chile, Colombia, Ecuador, Panama, Peru

Independent programmes

Antarctic Region

1980 camlr Convention

Australia, Argentina, Belgium, Brazil, Bulgaria, Canada, Chile, People’s Republic of China, Cook Islands, European Union, Finland, France, Germany, Greece, India, Italy, Japan, Republic of Korea, Mauritius, Namibia, Netherlands, Nez Zealand, Norway, Pakistan, Panama, Peru, Poland, Russia, South Africa, Spain, Sweden, Ukraine, UK, USA, Uruguay, Vanuatu

Baltic Sea

1992 Helsinki Convention

Denmark, Estonia, European Union, Finland, Germany, Latvia, Lithuania, Poland, Russian Federation and Sweden

North-East Atlantic

1992 ospar Convention

Belgium, Denmark, European Union, Finland, France, Germany, Iceland, Ireland, Luxembourg, Netherlands, Norway, Portugal, Spain, Sweden, Switzerland, UK

ii The Legal and Non-legal Frameworks

1) The Regional Conventions
a) Structure and General Contents

The 14 regional seas conventions that have been adopted since the mid-1970s are consistent with and widely reflect unclos Part xii, while some conventions – especially the Helsinki and ospar conventions as well as some instruments of the so-called second generation – present a stronger and clearer wording or more stringent obligations (both with regard to substantive and procedural provisions) and address some additional issues.

In the preambles of the regional conventions, reference is often made to ‘the special hydrographical and ecological characteristics of the region and its vulnerability to pollution’. In some regions, the contracting parties note that global agreements ‘do not cover all aspects of environmental deterioration and do not entirely meet the special requirements’ of their region.1205 The aim to enhance cooperation on a regional basis is, therefore, stressed in the conventions, and parties are encouraged to enter into bilateral and multilateral agreements.

Except for the camlr Convention, all the regional conventions oblige their parties to take preventive and responsive measures against pollution. They define the different pollution sources and oblige their parties to address land-based sources. They moreover require parties to cooperate in cases of pollution emergencies, call for scientific and technical cooperation, including with regard to pollution monitoring, and oblige parties to undertake environmental impact assessment with regard to planned activities. The conventions also generally contain the relevant definitions, address dispute settlement and provide for institutional arrangements. Finally, most conventions require their parties to designate a focal point or competent national authority and provide the other parties with respective information.

The common denominator of the regional conventions thus largely corresponds to the obligations as contained in unclos Part xii. However, exact formulations and the corresponding level of commitment greatly vary from one region to another. For instance, while the Lima Convention only requires its parties to endeavour to adopt appropriate measures,1206 others explicitly oblige their parties to adopt plans, programmes and environmental legislation for implementing the conventions and their protocols, to set time limits for the full implementation of adopted measures and to apply a range of environmental management principles such as the precautionary principle, the polluter pays principle, integrated coastal area (and river basin) management, and sustainable development.1207 Remarkably, the ospar and Helsinki conventions apply a rather rigorous interpretation of some of these principles, especially the precautionary principle.1208 There are also differences in wording with regard to obligations related to scientific and technical cooperation, assistance, monitoring and environmental impact assessment. A number of conventions address the issue of particularly sensible areas or endangered species and require parties to establish protected areas. Very few conventions refer to the use of best available techniques and best environmental practices, clean production and the role of the private sector. Some conventions address further issues which are of particular concern in their region.1209

In contrast to unclos Part xii, the regional conventions oblige their parties to regularly report on implementation to the governing body or some other institution. Such reports at least include a description of the measures taken for the implementation of the convention. Some instruments also require an evaluation of the effectiveness of these measures and, as the case may be, a report on problems encountered in the implementation of the convention. Most conventions provide for a dispute settlement procedure, either in a single provision or in a separate annex. By contrast, compliance procedures are not commonly envisaged in the conventions. The most remarkable exception in this regard is, perhaps, the ospar Commission’s supervisory and control power, which is widely unique in the field of environmental protection from land-based pollution sources. The commission assesses compliance by parties with the convention and recommendations or decisions taken thereunder. It bases its assessment on the country reports and may decide upon necessary steps ‘to bring about full compliance’.1210 Most conventions do also not contain any specific requirements with regard to liability and compensation.1211 An exception in this regard is the 1992 Bucharest Convention, which obliges its parties to adopt rules and regulations on the liability for damage caused by natural or juridical persons to the marine environment of the Black Sea, and to ensure that recourse is available.1212

The conventions set up the necessary institutional arrangements, generally including a governing body, in which all the parties are represented, and a secretariat. The governing bodies of UN Environment-administered conventions are referred to as meeting of the parties, while UN Environment is responsible for carrying out secretariat functions. With regard to the conventions concluded under the auspices of non-UN Environment-administered or independent programmes, the institutional set-up is more diverse. Their governing bodies either consist of a conference or meetings of the parties, commissions or the governing council of a specific organization established for the protection and conservation of the regional marine environment. The core functions of the governing bodies include: the supervision of the implementation of the convention, the state of the marine environment and the effectiveness of the measures taken; the review of the content of the convention and related instruments; the adoption, review and amendment of protocols and annexes; the adoption of procedural and financial rules; and the determination of the budget and financial participation of the parties. Under some conventions, they can also adopt recommendations or decisions, set up subsidiary bodies or review compliance by contracting parties. Governing bodies usually meet on a yearly or biennial basis and take unanimous decisions with regard to substantive matters. Besides the governing body and a secretariat, two conventions include a judicial commission or committee for the settlement of disputes. Very few conventions have technical and scientific bodies.

UN Environment granted its regional seas programmes substantial financial support during their initial phase. The programmes were supposed to take on full financial responsibility after a certain period of time. To this purpose, most conventions request their governing bodies to adopt financial rules and determine the annual contributions by the parties. Such contributions are usually paid to a regional trust fund that is administered by the respective secretariat. However, transition to financial autonomy was – and still is – a major challenge in developing-country regions.

An overview on the general contents of the regional conventions is provided by Table 9.

b) Covered Area

The geographical scope of the regional conventions greatly varies. Conventions applying to enclosed or semi-enclosed seas, including the Mediterranean Sea, Black Sea, Baltic Sea and Caspian Sea, usually apply to the entire maritime area of the respective enclosed or semi-enclosed sea. Two of these conventions allow or require the inclusion of internal waters as defined by each party.1213 By contrast, the Bucharest and Tehran Conventions do not refer to coastal areas or internal waters with regard to their geographical scope. The Kuwait and Jeddah Conventions, which also apply to a strictly defined geographical sea area, explicitly exclude the application of the conventions to internal waters, unless otherwise provided.

The landward and seaward limits of the areas covered by conventions applying to open coastlines also vary: four of these conventions explicitly include internal waters or the coastal environment in their scope of application. The amended Nairobi Convention even includes the watershed of the contracting parties as specified in each protocol. The outer limit of the covered area at least includes the 200-nautical mile zone falling under the jurisdiction of the contracting states. The Cartagena, Noumea, Lima and ospar Conventions also include parts of the high seas as defined in the respective conventions. Least concise is, perhaps, the formulation used in the Antigua Convention, which defines its scope of application as ‘the maritime areas of the Northeast Pacific, defined in conformity with the United Nations Convention on the Law of the Sea’.1214

Remarkably, there are no regional legal instruments on the protection of the marine environment applying to the South Asian Seas, the South-East Asian Seas, the North-West Pacific and the South-West Atlantic regions. In some of these regions, land-based pollution, and marine plastic pollution in particular, are a major concern, as 14 of the 20 most polluting countries and the most polluting rivers are located in these areas.1215 For an overview on the area covered by the different regional conventions, see Figure 18.

Table 9
Content of regional conventions

Parties

Applies to internal waters

General aim to enhance cooperation

General obligation to take preventive and responsive measures against pollution

Explicit duty to adopt environmental legislation

Addresses lbs in a general way

Provides for specific measures on lbs

Refers to transboundary movements of hazardous wastes and their disposal

Requires parties to cooperate in cases of pollution emergencies

Calls for scientific and technical cooperation, including with regard to monitoring

Specific provisions on liability and compensation

eia with regard to planned activities

Marine protected areas; hotspots; sensitive areas; endangered species

Public access to information

Public participation

Education and awareness

Duty to report on implementation

National focal points

Compliance procedure

Dispute settlement procedure

Budget; funding; financial mechanisms

Institutional arrangements (Secretariat/CoP, MoP, Council or Commission)

Advisory committee; technical body

Envisages the adoption of protocols

Reference to:

- precautionary principle or approach

- polluter pays principle

- Sustainable development; integration

- iczm

- clean production

- bat/bep

- eqs/eqo

Region

Instrument

eif

Caspian Sea

2003 Tehran C.

2006

5

X

X

X

X

X

X

X

X

X

X

(X)

(X)

X

X

X

X

(X)

X

X

East Asian Seas

Mediterranean

1995 Barcelona C.

2004

22*

X

X

X

X

X

X

X

X

X

X

X

(X)

X

X

(X)

X

X

X

X

X

X

X

X

North-West Pacific

West & Central Africa

1981 Abidjan C.

1984

17

X

X

X

X

X

X

X

X

X

X

X

X

(X)

X

X

X

Western Indian Ocean

1985 Nairobi C.

1996

10

(X)

X

X

X

X

X

X

X

X

(X)

X

(X)

X

X

2010 Nairobi C.

(n.i.f.)

X

X

X

X

X

X

X

X

X

X

(X)

X

(X)

X

X

X

X

X

Wider Caribbean

1983 Cartagena C.

1986

25

X

X

X

X

X

X

X

X

X

X

(X)

X

X

Black Sea

1992 Bucharest C.

1994

6

X

X

X

(X)

X

X

X

X

X

X

(X)

(X)

X

X

X

North-East Pacific

2002 Antigua C.

(n.i.f.)

X

X

X

X

X

X

X

X

X

X

X

X

(X)

(X)

(X)

X

X

X

X

X

X

(X)

(X)

Pacific

1986 Noumea C.

1990

12

X

X

(X)

X

(X)

X

X

X

X

X

X

X

(X)

X

X

Red Sea & Gulf of Aden

1982 Jeddah C.

1985

7

X

X

X

X

X

X

X

X

X

(X)

X

X

X

(X)

X

ropme Sea

1978 Kuwait C.

1979

8

X

X

X

X

X

X

X

X

X

X

(X)

X

(X)

X

South Asian Seas

South-East Pacific

1981 Lima C.

1986

5

(X)

X

(X)

(X)

X

X

X

(X)

X

X

X

(X)

X

X

Antarctic

1980 camlr C.

1982

36*

X

X

X

X

(X)

X

X

X

X

Arctic

Baltic Sea

1992 Helsinki C.

2000

10*

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

North-East Atlantic

1992 ospar c.

1998

16*

X

X

X

X

X

(X)

X

(X)

X

X

(X)

X

X

X

(X)

X

X

X

X

X

X

(X)

Global

1982 unclos

1994

168

X

X

X

X

X

X

(X)

X

(X)

X

eif = entry into force

n.i.f. = not in force

* including European Union

X = criterion is fulfilled; direct reference

(X) = criterion is fulfilled to some extent or implicitly; indirect reference

lbs = Land-based sources of marine pollution

eia = Environmental impact assessment

iczm = Integrated coastal zone (and river basin) management

bat = Best available technique

bep = Best environmental practice

eqs = Environmental quality standard

eqo = Environmental quality objective

Figure 18
Figure 18
Parties to regional conventionsauthor
2) Legal Instruments on Land-based Sources of Pollution
a) Structure and General Contents

The thematic scope of the instruments on land-based sources mostly includes discharges originating from land-based point and diffuse sources and activities that may affect the marine environment of the regional sea, as well as input of polluting substances from land-based sources that are transported through the atmosphere.

The protocols usually aim explicitly at eliminating pollution from land-based sources and phasing out the inputs of polluting substances. To this end, they establish a national system of discharge limitations and control, which is based on environmental assessment and monitoring1216 and strongly builds on the use of best available technologies and best environmental practices. The protocols usually distinguish between point and diffuse sources of pollution and other harmful activities. Point sources, such as factory outlets, are to be strictly regulated by the competent national authorities. Most of the protocols and the ospar and Helsinki Conventions require such regulation to prescribe a system of prior authorization, monitoring, inspection and, possibly, sanctions.1217 Some instruments provide further guidance on how to address specific sources of land-based pollution, including diffuse sources such as agriculture and forestry.1218

A list of substances and activities that need particular consideration is contained in the annexes to the protocols or opsar and Helsinki conventions.1219 Sectors of priority activities include, for instance, the textile, recycling, beverages, rubber and plastic industries, as well as tourism, agriculture, aquaculture and waste water and solid waste management. Categories of priority substances notably include litter. They also often include endocrine-disrupting substances and non-toxic substances that may interfere with any legitimate use of the sea. Plastics are, therefore, covered in various ways. Persistency, toxicity and bioaccumulation are among the characteristics of targeted substances that need to be taken into account in the implementation of the protocols and agreements.1220

A majority of the protocols use the concepts of best available techniques (or technology) and best environmental practices. Best available techniques are usually defined as ‘the latest stage of development (state of the art) of processes, of facilities or of methods of operation which indicate the practical suitability of a particular measure for limiting discharges, emissions and waste’.1221 The use of such techniques or technologies shall emphasize the use of non-waste technology. Best environmental practices, on the other hand, refer to the application of the most appropriate combination of measures. Such measures may include:

  1. the provision of information and education to the public and to users about the environmental consequences of choice of particular activities and choice of products, their use and ultimate disposal;
  2. the development and application of codes of good environmental practice which cover all aspects of the activity in the product’s life;
  3. the mandatory application of labels informing users of environmental risks related to a product, its use and ultimate disposal;
  4. saving of resources, including energy;
  5. making collection and disposal systems available to the public;
  6. avoiding the use of hazardous substances or products and the generation of hazardous waste;
  7. recycling, recovery and reuse;
  8. the application of economic instruments to activities, products or groups of products; and
  9. the establishment of a system of licensing, involving a range of restrictions or a ban.1222

Reference to environmental management principles such as the precautionary principle, the polluter pays principle or clean(-er) production are more common than in the parent conventions. Also, when compared to the regional conventions, more land-based sources protocols oblige their parties to provide public access to environmental information, to involve the public in the formulation and adoption of measures and in impact assessment procedures, and to take measures related to education and awareness with respect to the problem of marine pollution.

With regard to regional cooperation, many of the protocols require their parties to adopt common guidelines, standards or criteria dealing with some technical aspects, limitation values of discharges and emissions, seawater quality, the progressive replacement of products causing significant pollution of the marine environment, etc. Some protocols use the concepts of environmental quality objectives1223 and environmental quality standards1224 for this purpose. The required level of detail with regard to cooperation and policy harmonization is, therefore, much higher when compared to corresponding requirements under unclos or the regional conventions. Duties related to technical assistance tend to be more specific than in the parent conventions, too.

Most of the protocols require the parties to assess the effectiveness of regulatory and other measures they have taken for implementation of the protocols and to report on results and possible difficulties. Some instruments establish or envisage the establishment of compliance procedures, providing the governing body with the necessary competences to review compliance and decide upon steps to bring about full compliance with the provisions of the respective instrument.1225

In the parent conventions, notification and, possibly, consultation with affected parties is often required in cases of pollution emergency and (imminent) transboundary damage. Reference to prior notification, exchange of information and consultation among parties is also common with regard to projects and, as the case may be, programmes subject to environmental impact assessment. There is, however, usually no strict obligation for prior consultation. Rather, most conventions either allow their parties to invite other parties to consult with them,1226 or require their parties to develop procedures for the dissemination of information and, if necessary, for consultations among the parties concerned.1227 Also, none of the instruments provides that parties have to consult with their neighbours or the supervisory treaty bodies with regard to the emission authorizations and licences they issue in accordance with the conventions or protocols and their annexes. This means that other parties and the supervisory bodies have only limited means to influence respective decision-making in a state party. Especially in cases of domestic (non-transboundary) damage, they can at best intervene ex post, that is, after damage has occurred – if the treaties allow for it. This potential lacuna is slightly attenuated by some other duties of the states, including the general duty to cooperate among each other in the implementation of the convention and the protocols, the duty to adopt and implement regional guidelines and standards, the duty to report on measures and their effectives, and the duty to settle disputes peacefully.

It follows from the above that implementation of the regional instruments on land-based sources is multilayered: from a regulatory point of view, it includes the adoption of common standards and practices at a regional level and policy harmonization. It also includes the adoption and enforcement of national implementation measures and the adherence to the regional standards by the parties. Enforcement of regional standards, including with respect to the issuance of permits, monitoring activities and inspection, is down to the parties; the power of supervisory bodies is very limited in this regard. The realization of mitigation and conservation projects within or across countries also contributes to the implementation of the agreements. Such projects are usually funded by multiple actors, including external actors such as the gef.

Finally, most protocols address budgetary and financial issues, as fundraising remains one of the most fundamental challenges with regard to the implementation of the regimes. In addition to the financial mechanisms as provided for in the conventions, some protocols invite contracting parties to provide additional funding in form of voluntary contributions. They require states to ensure that adequate financial resources are available for implementation, as well as for the operation of the secretariats and other bodies. Moreover, they oblige their parties to ‘explore innovative methods and incentives for mobilizing and channelling resources, including those of foundations, non-governmental organizations and other private sector entities’.1228 The private sector and public–private partnerships are identified as an important potential source of funding.

An overview on the general contents of the protocols and conventions on land-based sources is provided in Table 10.

b) Covered Area

The geographical scope of most of the protocols on land-based sources of pollution is broader than that of their parent convention, as they mostly apply to (parts of the) internal waters (usually up to the freshwater limit or to a limit designated by the contracting parties). The 1996 Syracuse, 2012 Abidjan and 2010 Nairobi Protocols apply to the entire watershed situated within the territory of one of the contracting parties.

So far, regional legal instruments on land-based sources of marine pollution have only been in force in Northern Europe and the Mediterranean region, as well as the Black Sea, ropme Sea, Caribbean and South-East Pacific regions. With regard to the instruments currently in force, the ones applying to the European and Mediterranean room tend to be both more stringent and more comprehensive than others. However, regional differences in the level of obligations as reflected in the legal instruments will be reduced considerably once the newer protocols enter into force. More or less recently adopted protocols are being ratified in the African regions, as well as in the Black Sea, Caspian Sea and Red Sea and Gulf of Aden regions.

For an overview of the area covered by the protocols, see Figure 19.

Table 10
Content of lbs protocols and the ospar and Helsinki conventions

Parties

Applies to internal waters

Applies to the entire watershed

Includes inputs through the atmosphere

Objective to eliminate pollution; phase out

Asks for timetables for implementation

Common guidelines and standards

Refers to the progressive replacement of products & processes

National system of authorization, monitoring, inspection, possibly sanctions

Emission control; discharge limitations

List of substance categories and activities to be covered; list of characteristics (Annexes)

Contains guidance on how to address point and diffuse sources (and other activities)

Monitoring; eia; assessment of measures

Marine protected areas; hotspots, sensitive areas: endangered species

Public access to information

Public participation

Education and awareness

Scientific and technical cooperation; assistance

Duty to report on implementation

National focal points

Compliance procedure

Addresses additional funding sources

Advisory committee; technical body

Reference to:

- precautionary principle

- polluter pays principle

- Sustainable development; integration

- iczm

- clean production

- bat/bep

- eqs/eqo

- gpa

Region

Instrument

eif

Caspian Sea

2012 Moscow P.

(n.i.f.)

X

X

X

X

X

X

X

X

X

X

X

X

X

X

(X)

X

X

X

X

X

X

X

X

X

X

X

X

X

Mediterranean

1996 Syracuse P.

2008

17*

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

West & Central Africa

2012 Abidjan P.

(n.i.f.)

X

X

X

(X)

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

(X)

X

X

X

X

X

Western Indian Ocean

2010 Nairobi P.

(n.i.f.)

X

(X)

X

(X)

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

(X)

X

X

X

(X)

X

X

Wider Caribbean

1999 Aruba P.

2010

13

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

Black Sea

1992 Bucharest P.

1994

6

X

X

X

(X)

X

(X)

X

2009 Sofia P.

(n.i.f.)

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

X

Red Sea & Gulf of Aden

2005 Jeddah P.

(n.i.f.)

X

X

X

X

X

(X)

X

X

X

(X)

X

X

(X)

(X)

X

X

X

(X)

X

X

(X)

X

X

X

X

ropme Sea

1990 Kuwait P.

1993

6

X

X

X

X

X

(X)

X

(X)

(X)

X

X

X

(X)

South-East Pacific

1983 Quito P.

1986

5

X

X

(X)

X

(X)

X

X

(X)

X

X

X

Baltic Sea

1992 Helsinki C.

2000

10*

X

(X)

X

X

X

X

X

X

X

(X)

(X)

X

X

X

X

X

X

X

(X)

North-East Atlantic

1992 ospar C.

1998

16*

X

X

X

X

(X)

X

X

X

(X)

X

X

X

(X)

X

X

X

X

X

X

X

X

(X)

Global

1982 unclos

1994

168

(X)

(X)

X

eif = entry into force n.i.f. = not in force

* including European Union

X = criterion is fulfilled; direct reference

(X) = criterion is fulfilled to some extent or implicitly; indirect reference

lbs = Land-based sources of marine pollution

eia = Environmental impact assessment

iczm = Integrated coastal zone (and river basin) management

bat = Best available technique

bep = Best environmental practice

eqs = Environmental quality standard

eqo = Environmental quality objective

gpa = 1995 unep Global Programme of Action

Figure 19
Figure 19
Parties to regional protocols (and conventions) on land-based sources currently in force
Author
3) Specific Examples

The present subsection presents examples of both a legal and a non-legal regional scheme. The example regions involve different continents and legal cultures and illustrate opposing approaches to pollution-related problems. They moreover reflect different levels of capacity and funding. Both programmes are administered by UN Environment.

Special attention is given to the Mediterranean regime. The Mediterranean regime exhibits several characteristics that make it particularly suitable as a testing field for a potential global instrument on plastic pollution. First, when compared to the ospar and Helsinki or the African regimes, the Mediterranean region involves a more representative mix of countries, including both developed and developing, with different legal traditions and economic and cultural backgrounds. Second, the regime has experienced both progressive forces and restraints in its development, much as may be expected in a global regime. Thanks to an acceptable level of available resources and the driving influence by the European Union, performance of the regime ranks in the (upper) mid-range, in spite of the absence of country leadership. Third, the Barcelona system represents a widely applied model based on a framework convention, issue-specific protocols, a decentralized structure and UN Environment administration. The East Asian Seas programme serves as the second example. The region is confronted with major problems and challenges related to marine plastic pollution. At the same time, the affected states have, so far, decided against a strong regional scheme.

a) Mediterranean Region

The Mediterranean Sea is a semi-enclosed sea of high strategic and ecological importance. It takes about a hundred years for its waters to be fully renewed. Bordering states include both industrialized and developing countries. In spite of the differences in their needs, legal systems or levels of economic development and wealth, they share a long tradition of cooperation for the protection of the Mediterranean environment.1229

Governing Instruments

The Mediterranean Action Plan (map) was adopted by 16 countries in 1975. Under the umbrella of UN Environment, it was the first of its kind. The map focused on pollution assessment and control, policy formulation, sustainable coastal development and sustainable resource management. The plan called for the adoption of a framework convention and specific protocols for the protection of the Mediterranean environment. Only a year after the adoption of the map, the Convention for the Protection of the Mediterranean Sea against Pollution (1976 Barcelona Convention) was adopted. Both the map and the convention were revised in 1995. The revision reflects a shift of emphasis from pollution control to a more integrated approach, including integrated coastal zone planning and management and the protection of biodiversity and ecosystems. map Phase ii was adopted1230 and the amended convention was renamed Convention for the Protection of the Marine Environment and the Coastal Region of the Mediterranean (1995 Barcelona Convention). The Barcelona Convention can be considered one of the forerunners for a number of later instruments concluded under the umbrella of UN Environment. It serves as a model type for a quite comprehensive legal instrument, touching on most of the issues as discussed above. Twenty-one states and the European Union are party to the convention.1231 Eight states parties are also member of the European Union.

The Barcelona Convention works as a framework convention and has been supplemented by seven protocols, including on dumping (from ships and aircraft), prevention and emergency (with regard to pollution from ships), land-based sources and activities, specially protected areas and biological diversity, pollution from exploration and exploitation of offshore resources, hazardous wastes, and integrated coastal zone management.

Core Obligations and Governing Principles

The territorial scope of application of the Barcelona Convention is, in principle, limited to ‘maritime waters of the Mediterranean Sea proper’, but can be extended by the parties to their coastal areas.1232 Similar to unclos, the core obligation as stipulated by the convention relates to the adoption of measures and environmental legislation in particular. Unlike unclos, however, the regional convention requires parties to take all appropriate measures not only to prevent and control marine pollution, but also to ‘abate, combat and to the fullest possible extent eliminate pollution of the Mediterranean Sea Area […] so as to contribute towards its sustainable development’.1233 The principle of sustainable development is also reflected in a reference made to policy integration and intra- and intergenerational justice.1234 In addition, the Barcelona Convention requires parties to apply the precautionary principle and the polluter pays principle, undertake environmental impact assessment, promote cooperation in the development of assessment procedures, and promote integrated coastal zone management.1235 In 2008 and 2012, respectively, the parties adopted two decisions to apply and implement the ecosystem approach in their activities with potential effect on the Mediterranean Sea.1236 Respective implementation objectives include the prevention and control of marine and coastal litter.1237 In 2013, the parties agreed on a list of good environmental status indicators and targets for the implementation of the ecosystem approach.1238 As a further step in this direction, they launched the Integrated Monitoring and Assessment Programme (imap) in 2016. imap will monitor environmental concerns, including with regard to biodiversity, pollution and marine litter, in an integrated manner.1239

Implementation

In implementing the convention, parties shall adopt programmes and measures, define time limits for their completion, utilize best available techniques and the best environmental practices and ‘promote the application of, access to and transfer of environmentally sound technology, including clean production technologies’.1240 Parties further have to ‘draw up and implement plans for the reduction and phasing out of substances that are toxic, persistent and liable to bioaccumulate arising from land-based sources’.1241 The convention calls on states to establish a monitoring system and to participate in pollution monitoring in areas beyond national jurisdiction.1242 Emphasis is also given to research on, access to and transfer of environmentally sound technology and to the provision of assistance in fields relating to marine pollution, with priority to be given to the special needs of developing countries.1243

The convention provides that parties have to give the public access to information on the state of the marine environment, on activities with potential adverse impact in this regard and on measures taken in implementing the convention. The public should be given the opportunity to participate in decision-making processes related to the implementation of the convention.1244 A broad participation and the involvement of major actors are also envisaged in the map ii. In 2009, parties adopted a formal procedure for the involvement of ngos and other civil society representatives.1245 In general, the secretariat is responsible for maintaining relations and coordinating activities with international organizations and ngos.

More specific provisions can be found in the corresponding protocols, including the one on land-based sources. The Protocol for the Protection of the Mediterranean Sea against Pollution from Land-Based Sources (Athens Protocol) was adopted in 1980. It was revised in 1996 in Syracuse (Syracuse Protocol).

The territorial scope of application of the Syracuse Protocol is considerably wider than the scope of the Barcelona Convention, as it includes the entire watershed area within the territories of the parties to the protocol, draining into the Mediterranean Sea.1246 The protocol also applies to inputs of polluting substances transported through the atmosphere to the Mediterranean Sea Area from land-based sources or activities.1247 The main focus of mitigation measures prescribed by the protocol lies on the phasing out of inputs of substances that are toxic, persistent and liable to bioaccumulate.1248 To this end, states shall adopt and implement ‘national and regional action plans and programmes, containing measures and timetables for their implementation’.1249 Annex i of the protocol provides some guidance for the preparation of action plans, programmes and measures for the elimination of pollution from land-based sources and activities. It defines the sectors of activity and the groups of substances to be covered due to a number of specific characteristics.1250 Binding short-term and medium-term regional action plans and programmes are adopted by the meetings of the parties. Such plans and programmes are to contain measures and timetables for their implementation, too. They are adopted by a two-third majority, with the possibility for parties to opt out.1251

According to the Syracuse Protocol, point source discharges and releases that may, directly or indirectly, reach the Mediterranean Sea have to be subject to authorization. Parties have to provide for systems of inspection and establish sanctions in the event of non-compliance.1252 Further guidance in this respect is provided by Annex ii of the protocol. Parties are also required to adopt common standards dealing, for instance, with the ‘control and progressive replacement of products […] causing significant pollution of the marine environment’.1253 Different types of plastic goods, especially single-use items and non-recoverable microbeads, fall into this category of goods.

The European Union is party to the Barcelona Convention and its protocols. Within the map system, it plays an important role in policy coordination and the formulation of common standards and practices.1254 The map uses concepts that have been developed in an EU context, such as that of good environmental status.1255 The EU is also an important donor for map projects, including a project related to the prevention and management of marine litter (Marine litter med 2016–2019).

A regional action plan on marine litter for the map region was adopted in 2013.1256 The prevention, reduction and control of marine litter generation and environmental impact are also a major objective in the Barcelona Convention Mid-Term Strategy 2016–2021. Further focal areas include integrated coastal zone management, marine protected areas and sustainable production and consumption.

Liability and Compensation

In the implementation of Article 16 of the amended Barcelona Convention, the contracting parties adopted guidelines on liability and compensation in 20081257 and a uniform questionnaire to regularly evaluate the liability regime of each party in 2009.1258 The guidelines play a merely coordinative role in the adoption of national liability and compensation schemes and are not binding in character. They do not provide for subsidiary liability by the state. Instead, they call on states to implement the polluter pays principle and to impose strict liability for damage on operators of activities covered by the Barcelona Convention or its protocols. For the purposes of the guidelines, damage includes both traditional damage (such as loss of life, injury or damage to property) and environmental damage.1259 The guidelines also apply to damage caused by pollution of a diffuse character ‘provided that it is possible to establish a causal link between the damage and the activities of individual operators’. The evaluation questionnaire assesses participation in and implementation of various instruments related to liability issues, including relevant EU legislation, as well as the application and implementation of the polluter pays principle by the contracting parties. The establishment of a compulsory insurance regime and of a Mediterranean Compensation Fund is envisaged in the guidelines but has not yet been realized.1260

Institutional Framework

Secretariat services are provided by UN Environment in line with Article 17 of the convention. UN Environment provides these services through the map Coordinating Unit (medu), which was established in 1979 and moved to its current location in Athens, Greece, in 1982. The medu is assisted by the different map components. One of these components is the Mediterranean Pollution Assessment and Control Programme (med pol). Its main objective is the prevention and elimination of land-based pollution of the Mediterranean. med pol assists the parties in the implementation of the Barcelona Convention and the dumping, land-based sources and hazardous wastes protocols. It plays an important role in the monitoring and assessment of marine pollution and the implementation of national action plans to address land-based pollution, including litter. Project and policy coordination, including with regard EU policies and law, is another important task of the med pol.

In addition to the medu and the map components, the Barcelona system involves a complex institutional framework. The contracting parties to the Barcelona Convention hold ordinary meetings on a biennial basis. A rotating bureau consisting of six representatives of the contracting parties assists the Meeting of the Parties. The parties also cooperate among each other through a network of national focal points. In 1995, the Mediterranean Commission on Sustainable Development (mcsd) was established. The commission includes representatives from governments, local authorities, international organizations, ngos and other actors. It serves as an advisory body to the parties and assists them in their efforts to integrate environmental concerns in their economic policies and development programmes. Also, the mcsd enhances cooperation between the different levels of governance, from local to global, and among various actors.

Dispute Settlement, Compliance and Reporting

With regard to dispute settlement, Annex A to the Barcelona Convention proposes an ad hoc arbitration procedure. The procedure includes a tribunal with three members. Decisions by the tribunal are binding on the parties to the dispute. At the request of one of the parties to the dispute, the tribunal may recommend essential interim measures of protection.

In 2008, the Meeting of the Parties established a compliance committee.1261 The aim of the committee is to assist parties and to facilitate, promote, monitor and secure compliance. To this purpose, it may require the submission of action plans or progress reports. The committee is the core element of a non-adversarial compliance procedure, complementing and supplementing the dispute settlement procedures as defined in the convention and its protocols. The compliance mechanism may be triggered by any party finding itself in a situation of non-compliance, any other state party to the convention and relevant protocols, the convention secretariat or the compliance committee itself. The role of the committee is mainly one of a facilitator. It does not apply sanctions but reports its findings to the contracting parties. The meetings of the parties can take further steps (such as capacity-building measures) and may publish cases of non-compliance. In serious, ongoing or repeated cases of non-compliance, the contracting parties may consider further action necessary to achieve the purposes of the convention and its protocols.1262 Transboundary pollution originating from the territory of a contracting party of the Syracuse Protocol can be brought directly to the Meeting of the Parties by any of the parties concerned.1263

Every two years, parties have to report on the legal, administrative or other measures taken by them for the implementation of the convention, its protocols and recommendations adopted by the meeting of the contracting parties. They also have to report on the effectiveness of such measures.1264 The Syracuse Protocol further requires reporting on authorizations, data resulting from monitoring and quantities of discharged pollutants.1265 There is a uniform reporting format.1266 Also, the parties adopted a number of indicators for measuring the effectiveness of implementing measures.1267 The meetings of the parties assess compliance with the convention on the basis of the party reports.1268 Reporting therefore plays a fundamental role in the compliance procedure. The failure by a number of parties to comply with their reporting obligations thus not only puts these parties in a situation of non-compliance but also constitutes one of the main stumbling blocks to adequately evaluating implementation of the convention and related instruments and to identifying the main challenges.1269

Budget

The programme budget is prepared by the coordination unit and adopted by the Meeting of the Parties. It usually covers a period of two years. The programme is mainly funded by country contributions to the Mediterranean Trust Fund. Relative contribution levels derive from the United Nations assessment scale. In 2020–21, total expected ordinary country contributions (excluding in-kind contributions by countries hosting the secretariat or regional activity centres) amounted to about €11.5 million of the total budget, with France, Italy and Spain being the largest contributors.1270 Further donors include the EU, the gef, UN Environment and a number of international organizations. Major projects in the region include, for instance, the Strategic Partnership for the Mediterranean Sea Large Marine Ecosystem, aiming, among other things, at reducing pollution from land-based sources, and a project on marine litter (Marine litter med 2016–2019).

b) East Asian Seas Region (eas)

The East Asian Seas region is characterized by a number of sensible ecosystems and one of the highest degrees of biological diversity. It is especially rich in sea grass, mangroves and large coral reefs.1271 The region, however, is also characterized by large population growth, particularly in coastal regions, and rapid economic development over the past decades. It is home to one-fifth of the world’s population and comprises some of the world’s most polluted cities. Much to the detriment of the coastal and marine environments of the region, environmental considerations have come up short.1272 A lack of regional cooperation has been considered one of the causes for the fact that environmental conditions of the East Asian Seas continue to rapidly deteriorate.1273 The region also suffered severe impacts from the 2004 Indian Ocean tsunami.

As it is the case for the Arctic, South-West Atlantic, North-West Pacific and South Asian Seas regions, there is no regional convention covering on the protection of the marine environment in the East Asian Seas.1274 Instead, the programme is based on non-binding documents. Compliance is voluntary. The Action Plan for the Protection and Development of the Marine Environment and Coastal Areas of the East Asian Seas Region was adopted by Indonesia, Malaysia, the Philippines, Singapore and Thailand in 1981. It was revised in 1994, when Australia, Cambodia, the People’s Republic of China, the Republic of Korea and Vietnam joined in. Australia withdrew its commitment in 2011. In the action plan, the development of a regional database is envisaged, as well as long-term monitoring, environmental assessment and other scientific activities. Environmental management is another element that is addressed in the action plan, which for the purpose of the action plan includes, for instance, employing appropriate technologies for the prevention and management of pollution and capacity-building. The plan was complemented by a regional programme of action on land-based activities in 20001275 and a regional action plan on marine litter in 2008, which was revised in 2019.1276 In 2018, the newest strategic directions were adopted for the period up to 2022. In the document, member countries acknowledge that their region generates as much as half the world’s marine plastic litter, due to a change in economies and lifestyles.1277 Respective commitments remain, however, extremely vague and solely focus on review and implementation of the existing action plan on marine litter.1278

The regional action plan is operated by the Coordinating Body on the Seas of East Asia (cobsea). Supposedly, the nine member countries are represented at the biennial cobsea meetings, at which decisions are taken by consensus. However, efficiency of the organization is hampered by limited decision-making authority of participants, frequent absences, limited personal interest in the matter by individual participants, limited preparation and high fluctuations among state representatives, which results in a ‘lack of understanding of the regional problems in the East Asian Seas and of cobsea activities’.1279 The work of the cobsea Secretariat is often impeded by long ratification periods. Its tasks include the collection of data on the seas, the provision of guidance to the member states and the coordination of national policies and strategies.1280

Limited financial resources are one of the main challenges of the programme. Start-up funding from UN Environment ended in 2006. Staff costs and costs related to the tasks of the secretariat are now covered by voluntary contributions made by member states via the cobsea Trust Fund.1281 However, financial contributions from member countries are low and hardly suffice even to cover minimum staff costs. Implementing projects are usually funded by donor countries or regional or global funding institutions, including the gef.1282 cobsea has not been successful in acquiring enough funding and competes for the scarce available financial resources with other regional agencies having a similar focus.1283 At a domestic level, limited capacity is also a contributing factor to poor enforcement of implementing legislation.1284

Other constraining factors include the absence of leadership, the lack of a compliance mechanism, low commitment and low cooperative efforts.1285 Moreover, a lack of coordination among regional actors leads to a duplication of activities and governance gaps. UN Environment headquarters in Nairobi has also been criticized for not showing the desired degree of leadership and interest in the regional activities ‘apart from desiring a legally binding regional agreement’.1286

The region’s high pollution potential (which is due to a combination of high coastal population and insufficient waste management) along with the absence of a functioning regional system effectively protecting the marine environment results in extremely high plastic input into the sea. The region could, therefore, benefit from integration into a global regime on plastic pollution providing for a strong capacity-building scheme. Moreover, control of plastic input from the East Asian Seas Region into the ocean would benefit the global marine environment. The international community as a whole has, therefore, an interest in an effective preventive system in the East Asian Seas.

B Strengths and Deficiencies

While marine plastic pollution is a global problem, regional and local impacts, such as the loss of local ecosystem services, are usually the most prompt, direct and visible. This direct impact and the common interest in preserving the regional marine environment suggest that states seek regional solutions tailored to their specific situation. States bordering the same sea basin or sharing a coastline also share the responsibility for its protection, as degradation of the respective marine environments affects them all. What is more, neighbouring states often have a tradition of information exchange, policy coordination and cooperation. They usually share a wide range of common interests and values. It naturally seems easier for a small group of states with similar interests to agree on how to address a specific problem than it is for a large and diverse one.1287 Against this backdrop, regional cooperation schemes seem a suitable or even necessary response to the problem of marine pollution from land-based sources. In any case, they form an integral part of the current regime. This section examines the potential strengths and weaknesses of the regional approach with respect to the prevention of marine plastic pollution. It will show that while regional schemes have contributed significantly to the development of the law and policies on the protection of the marine environment, they do not by themselves provide a sufficient response to the problem of marine plastic pollution.

i General Effectiveness and Coverage of the Regional Programmes

Assessing the effectiveness of the regional conventions and their protocols in terms of physical impacts (that is, causal change in the conditions of the marine environment) is an extremely complex task and goes beyond the scope of this book. It has been asserted in this regard that while there are regional differences, general conditions of the marine environment are not improving.1288 At the same time, it seems evident that the regional programmes and the related work of UN Environment and other institutions have had a major impact on policy development and the evolution of environmental law at different levels. They played an important role in the development of new governance structures and legal instruments. This, rather than the real and effective improvement of the state of the marine environment, is what is widely considered the regional programmes’ major success.1289 The programmes also provided for opportunities for synergies, joint initiatives and policy coordination.1290 The degree to which such opportunities have been seized and corresponding potential has been harnessed is subject to major regional differences.

Overall, the design of the governing instruments, available resources, implementation and political commitment are very uneven. Some programmes, agreements and action plans are dense and comprehensive in character. They are periodically reviewed and adjusted, while others are not. Some instruments award their different bodies relatively wide competences, while the secretariats and bodies of other programmes have known long periods of inaction or still struggle with a lack of personnel and financial resources.

Such regional differences generally follow socio-economic and geographic factors: regional programmes mainly or partly involving developed countries are usually considered relatively successful. These programmes especially include the ospar, Baltic and Mediterranean programmes, all of which share a long history of cooperation.1291 By contrast, programmes with mainly developing-country membership are deemed less successful. Owing to scarce resources and other hurdles, their institutions often lack the necessary capacity to act and authoritative power. The performance of Asian programmes has been especially subject to criticism, including for low commitment of the parties and the inexistence of binding agreements on the protection of the marine environment, in particular from land-based sources. In many developing country regions, cooperation for the protection of the marine environment and implementation are hampered by political conflicts, the prevalence of short-term economic policies and the lack of public awareness. In addition, the competent ministries and agencies often lack the political power in order to get the national support and resources needed for the adoption of a regional convention or a meaningful implementation of the action plans. These factors come along with a lack of inter-agency cooperation and a poor science–policy interface. In general, it seems that poorer regions are more reluctant or faced with more difficulties to adopting binding regulation or build up strong institutions. The lack of a common and firm regulatory framework, however, leaves them more vulnerable to marine pollution.1292

Another weakness of the regional approach relates to the fact that scientific criteria for ecosystem-based management played a limited role as a factor in the determination of the different regions under the Regional Seas Programme. Instead, the regions were established corresponding to political or practical considerations. They do not encompass the whole oceanic system but leave some regions uncovered and widely unregulated. Also, there is no uniform approach with regard to the geographic scope of corresponding instruments: only a few of them include internal waters and coastal areas, and inclusion of the watershed is exceptional. The seaward limit of the covered regions also varies, with only a few instruments that include parts of the high seas.

The overall coverage of the programmes is, thus, limited in two respects. On the one hand, some of the most polluting regions are not covered by a legal instrument or by any programme at all. On the other hand, areas beyond national jurisdiction are included but to a very limited extent. While land-based pollution sources are obviously located within areas under national jurisdiction and must be addressed and prevented in these areas, plastic debris also highly affects areas beyond national borders, and poses a threat to marine species and ecosystems in these areas. Such impacts have to be taken into account in an ecosystem-based approach, but fall out of scope of the regional conventions and programmes. It therefore seems that regional schemes are not sufficient or appropriate to address pollution in the high seas and the deep seabed, including plastic accumulation in oceanic gyres and on the ocean floor.

ii Pollution Prevention Standards and Environmental Management

Regional programmes facilitate the formulation, adoption and implementation of common standards that reflect a common degree of commitment of the states involved. They allow groups of states to go beyond international standards, as far as they exist, and to contribute to the creation of a level playing field among neighbouring countries. Most regional instruments on land-based sources add some level of detail to the international framework, which is exactly in line with the concept of unclos Part xii, as unclos precisely refers to regional specificities and the possibility or the obligation to define regional standards, in particular with regard to land-based sources. Regional instruments are highly relevant for the implementation of unclos Article 194 and related provisions when identifing specific groups of substances and activities or sectors that need to be addressed by national measures or when listing a number of substance characteristics that need to be taken into account in the adoption of measures. Several industry sectors and activities that are major sources of plastic pollution (including, for instance, the management of municipal solid waste) are covered by these instruments. Litter ranks among the priority substance categories. Moreover, a number of problematic characteristics of marine plastic debris are explicitly mentioned as substance characteristics that need to be given particular attention in the preparation of action plans, programmes and measures.

Some of the regional conventions and the newer generation of the regional protocols on land-based sources oblige their parties to apply environmental management principles such as the precautionary principle or approach, the polluter pays principle, the principle of sustainable development, or integrated coastal area management. The relevance of some of these principles to plastic pollution mitigation has been explained in previous sections.1293 The principles provide for important guidance with regard to the implementation of the general duties and the commonly defined standards.

Through the use of bats, beps, environmental management principles and other tools, regional instruments on land-based sources give more or less detailed guidance on how different land-based sources of pollution should be addressed. Some of the criteria used for the determination of bats and suggested measures for beps are highly relevant for the prevention and management of marine plastic pollution. Such criteria and suggested measures include: the focus on non-waste technology; the provision of information and education; the application of labels, economic instruments, restrictions and bans; the provision of collection and disposal systems; avoidance of the use of hazardous substances; and the emphasis on recycling, recovery and reuse. While states still have, of course, wide discretion with regard to the measures they adopt, the obligation to use bats and beps may be helpful in specifying the standard of care and the required minimum level of protection on a regional basis.1294 This being, regional conventions theoretically have great potential to address one of the major weaknesses of the unclos regime. State and legal practice will show whether and to what extent this potential can actually be realized.

bats and beps are not static and uniform, but rather vary according to time and space. They lose their clear shape when confronted with the different social, economic and political realities of countries across the globe. A specific technique or practice may be available in one country but not economically feasible in another. The economic feasibility of a technique is, however, one of the factors to be taken into account in the determination of a bat or beps. The regional definition of bats and beps therefore allows to better addess the economic, political and technological gaps between different countries and regions, especially between developed and developing countries.

Along with the use of bats and beps, regional instruments require their parties to strictly regulate and control point sources of pollution through a system of waste and discharge permits, authorization and inspection. Industrial wastes or effluents containing (micro-)plastic particles and synthetic fibres should, thus, be subject to prior authorization. The system of discharge permits and authorization seems to contrast with the general aim of these instruments to phase out inputs of the substances that are toxic, persistent and liable to bioaccumulate. With the duty to adopt such a regulation system, emphasis is put on pollution control rather than pollution prevention. At least, increasing implementation of the ecosystem approach and integrated coastal zone and river basin management (for instance in the Barcelona regime) strengthens preventive approaches.1295

iii Institutional Considerations, Reporting and Compliance

Institutional advantages of the regional schemes include the more flexible reception and mainstreaming of new topics and challenges, their increased discussion in competent bodies and fora, the greater proximity of regional bodies to their parties, the network of national focal points, as well as reporting and compliance systems. Depending on the design and effectiveness of such systems, monitoring and reporting obligations allow the supervision and control of national implementation. As such, they provide the governing bodies with a limited means to react to cases of non-compliance, including cases of domestic pollution in which no direct interests of other states are at stake, and allow these bodies to provide assistance or push for more effective measures.1296

Potential disadvantages include institutional overlaps with other regional bodies, duplication of activities, and institutional competition for scarce funding.1297 Severe financial constraints, along with low commitment and disadvantageous priority setting by the member countries, are among the main reasons for the institutional inefficiency of some of the regional seas bodies. In view of the low priority they are given by their members and the little impact they have on the ground, it has been questioned whether such weak institutions should be maintained at all, especially if their focus is limited to pollution control and does not include ecosystem-based management, resource exploitation and the protection of biodiversity.1298 Moreover, the regional seas programmes have not, so far, drawn on their potential to influence action and decision-making under unclos. Overall, there has been little cooperation between the two governance regimes.1299

iv Means of Implementation

One of the most obvious challenges of the regulation of land-based sources of pollution relates to the widespread lack of the necessary means for the implementation of corresponding instruments. In theory, this is true for both global and regional instruments. A purely regional approach would, however, potentially exacerbate the problem, as it accentuates regional differences, does not provide the legal and institutional basis for the necessary assistance between regions and may therefore serve as a legitimization of a pluri-standard regime in which poorer nations are less well protected. This assumption is evidenced in practice by the obvious differences with regard to the level of commitment and effectiveness of the programmes between developed- and developing-country regions and the correlation between the level of economic development and the standard of care even within the same region.

From a global point of view, strengthening the means of implementation is, therefore, key to a more effective and efficient regime. Both the 2030 Agenda for Sustainable Development and the Addis Ababa Action Agenda on Financing for Development acknowledge the importance of creating an ‘enabling environment at all levels’ in the spirit of global partnership and solidarity.1300 sdg 17 is fully devoted to strengthening the means of implementation, including through: the mobilization of financial resources from public and private sources; investment in least developed countries; cooperation on and access to science, technology and innovation; the promotion of the development, transfer, dissemination and diffusion of environmentally sound technologies to developing countries; targeted capacity-building activities; equitable trade; enhanced policy coherence; public–private partnerships and private-sector engagement.

Capacity-building encompasses ‘the country’s human, scientific, technological, organisational, institutional and resource capabilities’.1301 It may consist of a wide range of activities building abilities and creating conditions that will enable public and private actors to improve their performance with regard to their environmental and development objectives. Increased environmental performance will, in turn, allow countries to achieve their goals as defined in the respective instruments. Capacity-building includes strengthening processes, systems and rules, as well as ‘people’s technical ability and willingness to play new developmental roles’.1302 Resource mobilization and capacity-building are important for industrialized and developing countries alike, but in order to allow developing-country regions to achieve the necessary level of protection for a sustainable development, they need assistance by others. Not only is financial, scientific and technical assistance by richer nations essential but also the exchange of experiences and best practices among developing countries. The provision of financial, scientific and technical assistance to developing and least developed countries, the dissemination of best practices and granting access to environmentally more friendly technologies is essential for enabling these countries to effectively discharge their obligations and to achieve the environmental goals as set in the instruments on land-based pollution sources. It is also important with a view to the use of bats and bets. The duty to provide these forms of assistance is a corollary to the differentiated responsibilities and – ideally – a remedy to the problem of double-standards within and between regions.

With regard to the prevention and elimination of marine plastic pollution, financial, scientific and technical assistance is needed in the fields as listed in Table 11.

Table 11
Relevant fields for capacity-building as well as technology and knowledge transfer in the prevention and elimination of marine plastic pollution

1. Marine litter in the environment, including with regard to:

– monitoring of the state of the marine environment, hotspots, rivers and disposal sites

– assessment of marine litter quantities, distribution and impacts, as well as of sources and pathways

2. Waste and resource management, including with regard to:

– waste reduction technologies and practices; reuse and recycling

– waste collection strategies and technology

– waste disposal strategies and technology, taking into account the region-specific waste composition

3. Production and consumption patterns, including with regard to:

– the use of economic incentives and market-based instruments

– the use of technical and other regulations

– the quality and service life of consumer and other goods

– the development of environmentally friendly product and packaging designs and materials

4. Clean-up and restoration strategies and technologies, including with regard to:

– beach clean-up methods and technology

– open water clean-up technology

– waste catchment technology for point sources, rivers, etc.

Almost all instruments on land-based sources require their parties to cooperate in the fields of scientific research, technology transfer, exchange of data and knowledge, technical assistance and capacity-building. Yet, inter-regional and inter-institutional cooperation in these fields is not generally regulated or coordinated and, thus, rather exceptional. It may be project-based or based on a memorandum of understanding (MoU) or other agreement on cooperation.1303 Also, only a few instruments, most of which are not yet in force, address the provision and mobilization of additional funds and other resources for their implementation.1304 They require states to raise sufficient domestic and external financial resources (e.g. assessed and voluntary contributions, grants, donations and loans) and encourage them to explore innovative methods for mobilizing and channelling resources1305 (e.g. cost internalization through market-based instruments or consumption taxes). The private sector and public–private partnerships play an increasingly important role in resource mobilization.

C Evaluation: Can Regional Programmes Close the Gaps?

Table 12 gives an overview on different aspects to the question whether and to what extent the regional schemes may close the gaps of the global regime.

Table 12

How regional programmes address the main challenges under the unclos regime with regard to marine plastic pollution

Main challenges under the unclos regime:

Responses by the regional programmes:

Pollution prevention standards and level of protection:

unclos does not, by itself, define standards on pollution prevention. Its reference to international rules and standards has partly weaker language in relation to land-based sources than in relation to other pollution sources. There are hardly any binding global rules and standards for the adoption of national mitigation measures. The standard of care varies according to the level of economic development and capacities. All these factors contribute to the fact that the standard of care and the required level of protection are not clearly defined.

– Regional programmes facilitate the formulation, adoption and implementation of common standards. Most regional instruments on land-based sources request their parties to regulate several industry sectors and activities that are major sources of plastic pollution. Litter ranks among the priority substance categories that need to be taken into account for regulation. Many regional instruments on land-based sources define standards on how to regulate and control point and non-point sources of marine pollution. Most often, they require states to set up a national system of authorization, monitoring, and inspection (sometimes with the possibility of sanctions). Some instruments require their parties to commonly adopt timetables for the phase-out of products and the implementation of other agreed measures.

Environmental management principles:

– In addition to the lack of standards, unclos does not provide guidance on the required level of protection or how it should be achieved by reference to environmental management principles that are highly relevant in tackling the problem of marine plastic pollution. Such principles include, in particular, sustainable development, the precautionary approach, the polluter pays principle, integrated coastal zone management and clean production.

– Some of the regional instruments oblige their parties to apply environmental management principles such as the precautionary principle or approach, the polluter pays principle or the principle of sustainable development. These and other principles provide for valuable guidance with regard to the implementation of general duties and plastic pollution mitigation:

– The precautionary principle or approach implies that scientific uncertainty with regard to the probability of plastics to reach the marine environment or with regard to their effects on the marine environment and human health may not serve as a justification for inaction.

– The polluter pays principle implies the notion of cost internalization and promotes the use of economic incentives (market-based instruments). It further provides guidance on how to best define a suitable liability scheme and plays an important role in the shift towards more sustainable production and consumption patterns.

– The principle of sustainable development requires states to take into account environmental and social impacts of plastic pollution in policy formulation. In order to do so, states need to assess and weigh up costs of action and inaction, including for poor country regions and future generations. Sustainable development thus demands a coherent, transparent and equitable formulation of policy and law.

Reference to plastic-specific tools providing for additional guidance:

– As a framework convention dealing with a wide range of issues related to ocean governance, unclos does not directly refer to plastic-specific or waste-specific tools. There is also no direct reference to relevant bats and beps such as the gradual and continuous replacement of products and facilities by more environmentally sustainable ones. However, unclos indirectly covers such tools by reference to internationally agreed rules and standards (such as the gpa). It requires states to take them into account when adopting measures for the protection and preservation of the marine environment.

– Some of the protocols on land-based sources specifically refer to the gpa and the principles or tools promoted therein. Moreover, reference to bats and beps is very common, especially in the newer generation instruments. Some regional instruments also provide for the possibility of defining marine protected areas and require their parties to take account of hotspots and endangered species. None of the instruments has been specifically tailored to marine plastic pollution, but the different treaty bodies often make reference to topical and emerging plastic-specific issues within the scope of their respective competences.

Environmental impact assessment and monitoring:

– Obligations under unclos to undertake environmental impact assessment and monitor activities are not sufficiently applied to some point sources of plastic pollution, such as coastal dumpsites, and are not well tailored to non-point sources of plastic pollution. Alternative, complementary schemes, such as impact assessments of products, life-cycle analysis, consumer information and green procurement are needed. Also, impact assessment of policies seems essential, especially with regard to production and consumption patterns.

– Most regional instruments on the protection of the marine environment essentially reflect unclos Article 206. Some of them, however, require their parties to commonly set up more detailed standards on environmental impact assessment and refer to public participation and information in assessment procedures. According provisions are usually complemented by reporting requirements on the measures taken in implementation of the convention or protocol. Only few among the regional protocols define a broader scope of application with regard to the duty to undertake environmental impact assessment.

Under the Nairobi 2010 Protocol, once it enters into force, parties will have to ‘ensure that new or existing activities, developments, programmes, plans, policies and processes that are likely to cause significant adverse impacts to the marine and/or coastal environment are subjected to environmental impact assessment, environmental audit or strategic environmental assessment, as appropriate, and prior authorization by a competent national authority or authorities as a matter of law’.

The 1990 Kuwait Protocol defines the minimum content of environmental impact assessment reports (Article viii). Reference to the progressive replacement of products that cause significant pollution to the marine environment (such as microbeads-containing cosmetics) can be found in most of the instruments dealing with land-based pollution sources. Reference to further complementary concepts such as life-cycle analysis or green procurement, that are relevant to diffuse sources of plastic pollution in particular, is much less common.

Means of implementation and capacity-building:

– In unclos, the concept of graduation and differentiated levels of obligation does not come with a sufficiently strong and clearly defined obligation for scientific and technical assistance and technology transfer. As a consequence, many low-income countries have difficulties in properly implementing the convention and apply very low standards. Capacity-building is crucial for the regime to be enhanced.

– Nearly all the regional instruments call for scientific and technical cooperation, including with regard to monitoring. Most of the protocols also cover technical assistance and capacity-building, and some also address resource mobilization and fundraising, including with regard to domestic and external funding sources as well as the private sector. However, a lack of means of implementation, along with high regional disparities in this regard, remains one of the major challenges of the regional seas programmes.

Compliance and enforcement:

– In spite of the unique dispute settlement system established under unclos, obligations of unclos Part xii are hardly enforceable with regard to marine plastic pollution from land-based sources. Especially with regard to areas beyond national jurisdiction and domestic pollution, enforcement is particularly challenging. Reasons include:

– the lack of binding standards and guidance on the required level of protection;

– the fact that unclos is not well tailored to the particular challenges related to sources of marine plastic pollution, including their continuous, dispersed and diffuse character;

– Almost all of the regional conventions define a dispute settlement procedure which, as the case may be, complements unclos dispute settlement. In some regions, judiciary bodies have played a role in the evolvement of the regime (for example in the ospar region); in others, however, resort to these bodies has been low. In addition to traditional dispute settlement procedures, some of the protocols on land-based sources provide (the development of) non-confrontational compliance procedures. These are closely related to reporting obligations. In most of the regions, parties need to report on a regularly basis to the governing body.

– the fact that unclos does not include any form of compliance procedure as known by a number of multilateral environmental agreements. It lacks the necessary institutional setting with a supervisory body responsible for continuously assessing implementation and compliance of Part xii. Also, there are no reporting obligations under unclos, and states are not required to assess their policies and implementing measures.

  Usually, they report on the regulatory measures they have adopted in implementation of the protocol or convention, as well as on the effectiveness of these measures, discharge permits, environmental conditions, data resulting from monitoring, and difficulties in implementing the instrument. On the basis of the reports, the governing bodies can review and evaluate compliance and make recommendations. For instance, the ospar Commission supervises the implementation of the ospar Convention and decides upon steps to bring about full compliance with it.

In promotion of the implementation of its decisions or recommendations, the commission can decide on measures to assist a party to carry out its obligations.

In general, compliance with regional instruments varies among regions and much depends on available resources, political commitment and institutional arrangements.

Institutional arrangements:

– While concerns regarding the devastating impact of marine plastic debris and microplastics have been repeatedly expressed at the Meeting of the States Parties,a the issue has not been further addressed. unclos does not provide for a suitable forum to do so, nor do the representatives participating in the Meeting of the States Parties necessarily have the right expertise (especially with regard to land-based pollution sources).

– The regional programmes provide for a network of national focal points and institutions specifically dealing with land-based pollution sources. Ideally, these institutions continuously review the state of the marine environment, the implementation of the legal agreements, cases of non-compliance, the effectiveness of measures taken in the past and the need of future actions at different levels of governance. The institutional strength of the different regimes is, however, highly variable. In some developing-country regions especially, the secretariat is poorly resourced and the governing body has little impact. Only very few regional instruments provide for advisory or technical bodies.

a

unclos, ‘Report of the 25th Meeting of States Parties’ (2015) splos/287 para 90; ‘Report of the 26th Meeting of States Parties’ (2016) splos/303 para 98; ‘Report of the 27th Meeting of States Parties’ (2017) splos/316 paras 98 and 99; ‘Report of the 28th Meeting of States Parties’ (2018) splos/324 paras 89 and 93.

In view of the above, the regional schemes may be seen both as a mechanism of flexibility and a testing ground for new and innovative solutions. Their pioneering work is of crucial importance for the development of global standards and the evolution of a global regime. On the other hand, this implies that a regional system may bear the risk of regulatory fragmentation and a pluri-standard regime in which the regulatory density and/or effectiveness depends on legal traditions, political commitment, priority setting and geo-economic factors. In some regions, the lack of resources especially is a major stumbling block for the effective protection and preservation of the marine environment. In addition to these regional disparities and the absence of legally binding agreements in the main polluting regions, the geographic scope of the regional seas programmes is further limited by the fact that internal waters, watersheds and areas beyond national jurisdiction are not covered well enough.

To put it in a nutshell, the regional schemes complement the global regime as under unclos and other relevant conventions. They form an integral and essential part of the current framework and conceivably increase its effectiveness by defining clearer standards with respect to land-based pollution sources and plastics, thereby providing some guidance on how to implement the general duties in this respect. Their advantages and added value are, however, much limited to certain regions, which usually benefit from favourable geopolitical and economic conditions. Regional disparities and important gaps in their geographic scope prevent the regional programmes – at least in their current form – from giving a sufficient answer to the challenges related to marine plastic pollution.

3 Implementation at the Subregional and National Levels

The prevention and elimination of marine plastic pollution in implementation of the general and more specific obligations under unclos and the regional schemes require targeted policies, well-designed laws and a range of complementary measures. They should be tailored to the specific situation of a country or a region. States can choose from a range of different strategies and need to design their own set of measures. Overall, they are still much at the beginning of a learning process, and effective, sustainable and viable solutions are still under development. Continuing assessment and evaluation of measures and strategies, as well as a meaningful exchange of information and knowhow, are, therefore, crucial for the regime to take the greatest possible effect. unclos and the regional schemes require policy harmonization and common efforts, as appropriate.

A number of documents recently elaborated by international organizations and other bodies,1306 as well as the gpa1307 and the regional legal instruments and marine litter action plans1308 provide valuable guidance to policymakers on how to prevent marine pollution from land-based sources, and marine plastic pollution in particular. Respective reports take stock of implementing strategies and measures as adopted in a number of countries around the world. This chapter gives an overview of different types and categories of measures that may be adopted, taking effect at different stages of the life cycle of plastic products (A). Specific attention will be given to the European approach, which is peculiar in that it is of a holistic nature. In a second part, the chapter analyses possible issues of consistency of measures with relevant wto provisions (B).

A A Typology of Implementing Strategies and Measures

i General Overview

When implementing their duties with regard to marine plastic litter prevention, reduction and control, states should be guided by the relevant environmental management principles and thus

apply preventive, precautionary and anticipatory approaches; ensure prior assessment of activities that may have significant adverse impacts upon the marine environment; integrate protection of the marine environment into relevant general environmental, social and economic development policies; develop economic incentives consistent with the internalization of environmental costs and the polluter pays principle; and take into account equity concerns.1309

Moreover, given the primordial importance of prevention, legislation and other measures should target marine plastic litter, including microplastics, at source. While litter removal is important, measures are deemed more successful when governing the production, use and disposal of products, following a life-cycle approach. Insights gained from the first part of this book suggest that main regulatory concerns in this respect include waste and resource management on the one hand, and sustainable production and consumption patterns on the other hand. Enhanced producer and consumer responsibility are among the targets of the measures to adopt. In this vein, some states and the European Union have resorted to holistic approaches and adopted comprehensive legislation based on models such as a circular economy. Many countries, however, use a combination of separate measures, most of which form part of these countries’ general waste management frameworks. Only a minor part of the measures is specifically designed to address marine plastic litter.1310

Measures can be regulatory in character but can also be of a non-regulatory nature. A specific category of measures is market-based instruments (mbi), which may be anchored in law or based on (voluntary) industry agreements. mbis are not typical command and control measures but set economic incentives (or disincentives) in order to influence product demand and individual or corporate behaviour. mbis allow for the internalization of environmental costs associated with the consumption of a product, and thus for an implementation in accordance with the polluter pays principle.1311

In 2018, UN Environment published a report on national laws and regulations addressing the manufacture, import, sale, use or disposal of selected single-use plastics and microplastics, finding that such regulation has great impact on the production of marine litter.1312 The report took into account both product-specific regulation (such as plastic bag bans or bans of specific polystyrene products) and sector-specific regulation (such as packaging or waste management laws, investment laws and tax legislation). According to the report, 127 out of 192 countries reviewed had adopted some form of legislation to regulate plastic bags, including restrictions on the manufacture, distribution, use or trade of plastic bags, taxes and levies, and post-use disposal.1313 The report identified restriction on free retail distribution as the most common form of plastic bag regulation. A growing number of countries have included elements of extended producer responsibility for plastic bags within legislation (43 countries) or enacted such measures for single-use plastics (63 countries). Extended producer responsibility measures may, for instance, consist of deposit and refund schemes, product take-back, or recycling targets. The report has moreover found that bans of microbeads1314 in products through national laws or regulations are much less common, with only eight countries having adopted such bans, most of which only cover a subset of personal care products. New Zealand’s law on microbeads is highlighted by the report, as it includes not only personal care wash-off products, but also abrasive household, car and industrial cleaning products.1315

Under the CleanSeas campaign as launched by the UN in 2017, and on the occasion of the World Environment Day on 5 June 2018, which was convened under the theme ‘Beat Plastic Pollution’, 57 nations covering over 60 per cent of the world’s coastlines committed to take measures against marine plastic litter.1316

Table 13 lists a number of possible measures that states have taken in order to prevent marine plastic pollution at the stage of production, use or disposal, respectively, or eliminate it once it found its way into the environment.

Table 13
Non-exhaustive list of implementing measures according to different life-cycle stages

Command and control measures

Market-based instruments

Other

life cycle

Production and use

bans,a such as:

– bans of pre-production plastic

– bans on oxo-degradable plastics or other types of plastic

– bans and prohibitions of substitutable, unnecessary or unrecoverable products (e.g. microbeads in personal care products;b single-use products, including plastic bagsc and disposable cups and cutleryd)

– cigarette bans on beaches

technical regulations, such as

– minimal requirements with regard to the handling of pre-production plastic; obligation to use best practicese

taxes or levies on products (such as plastic bags or single-use cups and cutlery) or materials (such as polystyrene) at the production or retail level (charged on producers, retailers or consumers).g Such taxes or levies set incentives with regard to individual and corporate behaviour and generate public revenues that might be invested in awareness-raising campaigns etc.

standards and labels informing consumers about material properties and environmental performance of a product (recyclability, degradability, expected lifespan)h

– awareness-raising campaigns

– education programmes on sustainable production and consumption, including with respect to: consumption reduction, especially of single-use products; product substitution towards more environmentally friendly, long-living products; optimal lifespan of products; fight against planned and perceived obsolescence

– reuse and recycling targets (proportion of produced or imported plastic materials to be reused or recycled)

– stakeholder involvement; public–private partnershipsi

– research and development in the field of eco-friendly product and packaging design or product alternatives

– regulation of product and packaging design; quantitative and qualitative packaging regulations; regulation of the use of additives in plastics; thickness requirements with regard to plastic bags; material content requirements

– obligatory use of markings and other information tools (for consumers or recyclers)

other:

– production volume limits

– punitive lawf

subsidization of sustainable products or business models (production of alternative materials; plastic-free product substitutes; bulk markets and zero-waste stores)

green public procurement with a focus on marine litter prevention

Disposal

– waste and wastewater management regulations, including landfill bans

– penalties for littering and fly tipping/dumpingj

– landfill taxes

– waste disposal charges (may be an incentive for waste dumping if the dumping ban is not enforced)

– capacity-building and waste infrastructure investment

– public–private partnerships with private waste management operators, the recycling and waste water

– reuse and recycling requirements for retailers and consumers

– extended producer responsibility (take-back obligation of products; cost internalization with regard to environmental costs, including clean-up costs)

– deposit and refund schemes

 treatment industries or the tyre industry; research and development of technical solutions (for washing machines, treatment plants etc.)

– awareness-raising campaigns

– education programmes on disposal

– collection of data on plastic wastes

Coastal and marine litter

– clean-up requirements for beach tourism

– obligatory tracking devices for fishing nets and other gear

– refund schemes for marine litter (e.g. fishing gear)

– beach labels for litter-free beaches

– publicly organized coastal clean-ups

– marine strategy in view to achieve or maintain good environmental status in the marine environment

– collection of data on marine litter

– impact research

– research and development in the fields of monitoring and ocean and beach clean-up systems

a

For a list of national bans, including impact assessment, see unep, Single-Use Plastics: A Roadmap for Sustainability (n 94) 27ff.

b

See Microbead-Free Waters Act of 2015 (United States), 21 U.S.C. 331 (2015).

c

As examples for bans of the manufacture and, as the case may be, import of plastic bags, see Bangladesh Environment Conservation Act of 1995, as amended 2002; Government Notice (gn) R625/2003 (South Africa); Law N°57/2008 of 10 September 2008, Law Relating to the Prohibition of Manufacturing, Importation, Use and Sale of Polythene Bags in Rwanda, Rwanda Management Authority; Notice of the Chinese General Office of State Council on Restricting the Production, Sale and Use of Plastic Shopping Bags (sc go G [2008] No.72).

d

A ban of several single-use plastic products, including cutlery, plates and stirrers, has been adopted in the EU: European Parliament and Council Directive 2019/904 of 5 June 2019 on the reduction of the impact of certain plastic products on the environment [2019] oj L155/1 art 5.

e

Without the required care in handling, pre-production plastics, such as nurdles, pellets and powders, easily leak into the environment from factories, trucks, trains and ships. Leakage happens during normal use, as well as because of accidental spills. Nurdles and pellets accumulate in the marine environment, especially on sandy beaches, in great quantities and with highly adverse impacts: see Gregory, ‘Plastic Pellets on New Zealand Beaches’ (n 328); Yukie Mato and others, ‘Plastic Resin Pellets as a Transport Medium for Toxic Chemicals in the Marine Environment’ (2001) 35 Environmental Science & Technology 318; Fabiana T Moreira and others, ‘Revealing Accumulation Zones of Plastic Pellets in Sandy Beaches’ (2016) 218 Environmental Pollution (Barking, Essex: 1987) 313; Alexander Turra and others, ‘Three-Dimensional Distribution of Plastic Pellets in Sandy Beaches: Shifting Paradigms’ (2014) 4 Scientific Reports. As an example for nurdle management regulation, see California Water Code (2007) § 13367(b)(1).

f

In Kenya, for example, the making, selling and using of plastic bags is illegal and punishable by up to four years imprisonment: Gazette Notice No. 2334, Issued on March 14, 2007 under the Authority of Sections 3 and 86 of the Environmental Management and Coordination Act cap 387 on Plastic Bags 2017; Environment Management Coordination Act (emca) of 1999, as amended 2015.

g

Similar to many other countries and municipalities, Scotland introduced a minimum 5p charge for single use carrier bags on 20 October 2014 through the Single Use Carrier Charge (Scotland) Regulations.

h

See, for instance, European Commission Decision 2014/893/EU of 9 December 2014 establishing the ecological criteria for the award of the EU Ecolabel for rinse-off cosmetic products [2014] oj L354/47.

i

For a list of examples, see unep, Single-Use Plastics: A Roadmap for Sustainability (n 94) 21–22.

j

The Scottish Government introduced a fixed penalty of £80 for anyone who drops litter: Environmental Protection Act 1990 Section 87. The fixed penalty notice for fly tipping is £200: ibid Section 33.

ii Implementation at the Subregional Level: The Case of the European Union

The European Union is an interesting example for coordinated subregional implementation of the duty to prevent, reduce and control marine plastic pollution.1317 European Union environmental policy is based on the precautionary principle, the preventive principle, the principle to address environmental damage at its source and the polluter-pays principle.1318 These principles are of considerable relevance in plastic pollution mitigation strategies and are to be taken into account in the interpretation of relevant legislation. The strategic direction of European Union environmental policy is defined in the Environment Actions Programs, which since 2013 have included a target for marine litter reduction.1319 The European Union’s environmental policy is closely related to the circular economy action plan, which was first adopted in December 2015 and identifies plastics as a priority area of action.1320 Circular economy tools can play an important role in marine plastic pollution mitigation from land-based sources. Useful tools include:

  1. Extended producer responsibility, especially with regard to single-use packaging items;
  2. eco-friendly product design to facilitate reuse, repair, remanufacture and recycling;
  3. bans for unnecessary and damaging products or activities where viable substitutes exist (e.g. microbeads in cosmetics);
  4. improved legislation;
  5. economic incentives targeting consumption in implementation of the polluter pays principle;
  6. transparency and labelling, especially with regard to toxic additives in plastics;
  7. enhanced waste management, including with regard to infrastructure and waste treatment; and
  8. awareness-raising among consumers, including with regard to sustainable product alternatives.1321

Relevant legal and policy responses at the European Union level involve both source-related and impact-related instruments. Extensive waste management legislation, including plastic-specific, belongs to the first category. In the context of the European Union’s work on a circular economy, some of the relevant instruments have undergone significant adjustments in 2018. Impact-related regulation include instruments on freshwater quality, the marine environment or biodiversity protection.1322

The European Union’s waste management legislation includes prevention measures and recycling targets for plastics. Most fundamentally, the Waste Framework Directive ‘lays down measures to protect the environment and human health by preventing or reducing the generation of waste, the adverse impacts of the generation and management of waste and by reducing overall impacts of resource use’.1323 It defines a priority order in waste prevention and management legislation and policy (waste hierarchy),1324 as well as obligations in respect to waste prevention, recovery, reuse, recycling and disposal. It further promotes extended producer responsibility1325 and obliges member states to adopt waste management plans and waste prevention programmes.

In 2018, the Waste Framework Directive was amended to strengthen its focus on waste prevention and resource efficiency. With the amendment, member states are called to ‘facilitate innovative production, business and consumption models that reduce the presence of hazardous substances in materials and products, that encourage the increase of the lifespan of products and that promote re-use’ including through re-use and repair networks, deposit-refund and return-refill schemes and sharing platforms.1326 Minimum requirements for extended producer responsibility schemes are definded in a new Article 8a. Furthermore, member states are required to encourage environmentally friendly product designs allowing for multiple use and recycling. Quantitative targets were introduced with regard to the preparing for re-use and the recycling of municipal waste. One of the explicit aims of the amendments is to improve the protection of the oceans by reducing marine litter.

The Waste Framework Directive is complemented by the Packaging and Packaging Waste Directive, which ‘aims to harmonize national measures concerning the management of packaging and packaging waste in order […] to prevent any impact thereof on the environment’.1327 To this end, it lays down measures aimed at preventing the production of packaging waste, reusing packaging and recovering packaging waste, thereby reducing the final disposal of such waste.1328 Packaging may be placed on the market only if it complies with all essential requirements defined in the directive, including its Annex ii. According to these requirements, packaging ‘shall be so manufactured that the packaging volume and weight be limited to the minimum adequate amount to maintain the necessary level of safety, hygiene and acceptance for the packed product and for the consumer’ (quantitative regulation). Moreover, ‘packaging shall be designed, produced and commercialized in such a way as to permit its reuse or recovery, including recycling, and to minimize its impact on the environment when packaging waste or residues from packaging waste management operations are disposed of’ (qualitative regulation).1329 For the purpose of monitoring and implementation assessment, member states are required to establish databases on packaging and packaging waste providing information on the magnitude, characteristics and evolution of respective waste flows (including information on the toxicity or danger of packaging materials and components used for their manufacture).1330 The directive envisages the standardization of methods and methodologies concerning, among other things, the life-cycle analysis of packaging, measuring concentration levels of hazardous substances in packaging materials, and recycling. It also explicitly provides for the possibility for member states to adopt economic instruments in the implementation of the objectives set by the directive, to the extent that such action is not taken at the community level. Further provisions address the definition of a marking and identification system, as well as reporting.

Following a call by the European Parliament,1331 the Packaging and Packaging Waste Directive was amended in 2015 to now include measures on reducing the consumption of lightweight plastic carrier bags.1332 To promote the circular economy, a further amendment was adopted in 2018.1333 It aims to minimize the generation of packaging waste, including through the use of quantitative and qualitative targets, extended producer responsibility schemes and ecomonic instruments, as well as an increase in the share of reusable packaging placed on the market and the reuse of packaging. States have to ensure that, by the end of 2024, extended producer responsibility schemes are established for all packaging. With the 2018 amendment, Article 6 of the Packaging and Packaging Waste Directive now includes quantitative recycling targets, including for plastic packaging.

The Landfill Directive of 1999 was also amended in 2018.1334 It establishes operational and technical requirements for landfill operation in order to prevent negative effects on the environment, in particular the pollution of surface water, groundwater, soil and air.1335 Since 2018, it also aims to ‘ensure a progressive reduction of landfilling of waste, in particular of waste that is suitable for recycling or other recovery’. Member states shall endeavour to ensure that, as of 2030, waste suitable for recycling or other recovery, in particular contained in municipal waste, shall, in principle, not be accepted in a landfill.1336 They moreover have to take the necessary measures to ensure that by 2035, the amount of municipal waste disposed of in landfills is reduced to 10 per cent or less of the total amount of municipal waste generated.1337

In January 2018, the European Commission adopted the European Strategy for Plastics in a Circular Economy. The strategy ‘lays the foundations to a new plastics economy, where the design and production of plastics and plastic products fully respect reuse, repair and recycling needs and more sustainable materials are developed and promoted’.1338 As a response to China’s recent decision to restrict imports of certain types of plastic waste,1339 the strategy defines the target that, by 2030, all plastics packaging placed on the European Union market will be either reusable or able to be recycled in a cost-effective manner. Moreover, it envisages the decoupling of plastic waste generation and economic growth, as well as the promotion of better design and new business models offering more sustainable consumption patterns. In this vein, the European Commission proposed new EU-wide rules banning some of the most common single-use plastic products, including plastic cotton buds, cutlery, plates, straws, drink stirrers, sticks for balloons and certain drinks containers. The ban was sealed by the European Parliament and the Council in March 2019.1340 It also covers so-called oxo-plastics1341 and is flanked by consumption reduction targets, obligations for producers and collection targets. According to the European Strategy for Plastics in a Circular Economy, an evaluation of the Urban Waste Water Treatment Directive1342 as regards microplastics capture and removal is also envisaged. The intentional addition of microplastics to products is to be restricted under EU chemicals law.1343 The 2019 plastic amendments to the Basel Convention have been implemented by new rules applying to shipments of plastic waste, banning the export of hazardous plastic waste and plastic waste that is hard to recycle from the European Union to non-oecd countries.1344

At an international level, the strategy envisages a project to reduce plastic waste and marine litter in East and South-East Asia.1345 The planned project will promote a transition to sustainable consumption and production patterns and a significant reduction of marine litter in China, Indonesia, Japan, the Philippines, Singapore, Thailand and Vietnam, in particular. In addition, the European Union announced the allocation of eur 100 million under its Horizon 2020 Research and Innovation programme ‘to finance innovation on the development of smarter and more recyclable plastic materials, improving recycling chains as well as tracing and removing hazardous substances and contaminants from recycled plastics’.1346 Owing to these and other measures, the European Commission expects the leakage of plastics and microplastics into the environment to decrease.

European Union regulation relevant to marine plastic pollution mitigation includes not only source-related instruments, but also impact-related instruments. These include notably the Water Framework Directive,1347 the Marine Strategy Framework Directive (msfd)1348 and the Habitat Directive.1349

The purpose of the Water Framework Directive is to establish a framework for the protection of inland surface waters, transitional waters, coastal waters and groundwater, including through the progressive reduction of discharges, emissions and losses of specific substances and the phasing-out of discharges, emissions and losses of hazardous substances.1350 The directive follows a river basin approach. A river basin is defined as ‘the area of land from which all surface run-off flows through a sequence of streams, rivers and, possibly, lakes into the sea at a single river mouth, estuary or delta’.1351 Member states have to adopt and periodically revise a programme of measures and establish management plans for each river basin within their territory, including measures addressing both point and non-point sources of pollution. They have to protect, enhance and restore all bodies of surface water, with the aim of achieving good surface water status in a defined period of time. Annex v contains an extensive list of quality elements for the classification and monitoring of the ecological and chemical status of surface waters and the quantitative and chemical status of groundwater.1352

The msfd directive ‘establishes a framework within which Member States shall take the necessary measures to achieve or maintain good environmental status in the marine environment by the year 2020 at the latest’.1353 In order for an area to be considered as having good environmental status, it has to meet several criteria, including that ‘properties and quantities of marine litter do not cause harm to the coastal and marine environment’.1354 Each coastal Member State has to adopt a marine strategy, which is to be reviewed and updated every six years. In their marine strategies, states have to identify the measures that need to be taken in order to achieve or maintain good environmental status in their marine waters.1355 Some countries have adopted specific action plans or strategies for marine litter.1356

B Consistency with wto Law

i Plastics and Trade

The value of global trade in plastics is over 1 trillion US dollars per year, or 5 per cent of total merchandise trade. This value is higher than previously thought, as it includes more products than are listed in the plastics chapter of the Harmonized Commodity Description and Coding System (hs), which is administered by the World Customs Organization (wco). In particular, plastics embedded in products or used in pre-packaged products are not reported as such in the hs. Trade flows in such plastic goods is referred to as hidden flows, whose value and volume are not captured. Due to this lack of transparency, the total value of trade in plastics remains underestimated.1357

Trade in plastics concerns the entire life cycle from feedstock and additives to empty packaging materials and packaged products to consumer goods and plastic waste. Virtually all nations are involved in the global plastics trade, often on both the import and export side. Trade in plastic waste has grown strongly in recent decades and flows primarily from developed to developing countries, although the impact of the plastic amendments to the Basel Convention is not yet apparent in the figures. In implementation of the plastic amendments, an increasing number of oecd countries has banned or severely restricted the export of plastic waste to non-oecd countries.1358 The number of developing countries that have severely restricted imports of plastic waste has also increased, spurred by China’s far-reaching ban on most plastic waste imports in 2018. The starting drop-off of plastic waste streams from developed to developing countries is an important step in the global fight against marine plastic pollution, as ‘most recipient countries lack the capacity to recycle, incinerate or otherwise manage the scale of plastic waste they generate or import in an environmentally sound manner, resulting in extensive leakage of plastic waste into the environment’.1359 This is an important example of the potential role of global trade in the present context.

The plastic amendments to the Basel Convention are currently still a rare example of a globally coordinated approach to trade in plastics. Apart from them, the states are largely left to their own devices. Many countries have taken trade measures that are related to plastics. Not all of these measures have an environmental objective. Such measures are also taken to ensure food safety, protect human health or protect or support domestic production, including of feedstocks. Subsidies to the fossil fuel industry contribute to virgin plastic and its feedstock being available at low prices. This gives the market little incentive to switch to recycled or alternative materials or to cut back on production.1360 Subsidies along the value chain are thus also highly relevant and can have a positive or negative impact on the fight against global plastic pollution.

Since 2009, governments have implemented about 860 trade distorting or restricting interventions to key parts of the plastics sector, especially in the form of import tariffs and financial grants.1361 The high number of such interventions suggests that by adjusting plastic trade policy, great incentives can be given for a more sustainable resource management, e.g. by promoting alternative materials. This potential is still being explored, with particular attention to the opportunities and risks for developing and least developed countries. For example, developing countries are among the main suppliers of natural packaging materials such as jute, abaca, coir, kenaf and sisal. They may have a comparative advantage in the production of such materials and benefit from new export opportunities.1362

According to the wto’s Environmental Database, wto Members notified 128 measures affecting trade in plastics for environmental reasons from 2009 to 2018. Over 80 per cent of the measures were notified under the tbt Agreement, others under the sps Agreement. Over 80 per cent of the measures were notified by developing countries, in particular from Africa and the Middle East and Asia. Common trade-related measures with an environmental rationale include:

  1. Import bans and restrictions: including import licensing schemes and import bans or restrictions on plastic waste and certain plastic products, such as single-use products.
  2. Export bans and restrictions: especially in implememtation of the plastic amendments to the Basel Convention.
  3. Behind-the-border measures: including bans or restrictions, levies or taxes on the manufacture or use of certain kinds of plastics, such as single-use plastic products and materials.1363

Environment-related trade measures applied to the plastics sector have not yet been the subject of any formal dispute under the wto. Hoewever, five measures have been raised as specific trade concerns in the tbt Committee.1364 Discussions focused on the appropriateness of the standards rather than their environmental objective. The following subsections hence examine a number of issues related to the consistency of specific types of measures with wto law.

ii Bans, Taxes and Levies

Import bans of products per se, such as pre-production plastics, oxo-degradable plastics or single-use plastic bags and other items, constitute the most restrictive form of a quantitative restriction and thus typically violate gatt Article xi. However, when such a ban comes along with a prohibition of domestic production, the measure may be assessed under the national treatment obligation of gatt Article iii. Article iii is also applicable to taxes and levies when imposed on both imported and like (or directly competitive or substitutable) domestic products, provided that they accrue due to an internal event, such as the distribution, sale, use or transportation of the imported product. Sales taxes imposed on single-use plastic carrier bags typically fall into this category. Finally, gatt Article iii has to be observed with regard to internal regulation, such as a regulation on pellet management.

In the context of gatt Article iii, the nature and extent of the competitive relationship between imported and domestic products is crucial. In view of the border tax criteria, goods made from plastics and similar goods made from other materials (such as paper, wood, metal, porcelain, glass or natural fibres), may or may not be considered to be like products, depending on the specific circumstances of a case. For example, an argument can be made that single-use plastic cups, cutlery or dishes and single-use paper cups, cutlery or dishes are like products if they serve the same end use and different ecological impacts are not taken into account. By contrast, single-use plastic cups, cutlery or dishes and their conventional, reusable counterparts would probably not be considered like products when the differences in the products’ properties are complemented by different end-uses and consumer habits (such as takeaway food versus dine in). A ban on the production and import of such single-use plastic products would therefore hardly be considered a discriminatory measure only because porcelain dishes etc. are not equally banned. The case may be different again if a state bans the import of single-use goods made from petroleum-based plastics but does not similarly regulate domestic production of corn-based plastic goods with similar end uses. The measure might be identified as one applied to imported products so as to afford protection to domestic production by the domestic corn-based plastic industry.

In the event of a tax on the import of targeted goods, gatt-consistency of the measure would be examined under Article iii:2, in the event of a ban on both production and import, or a regulation affecting sale, use or distribution of these products, the case would fall under Article iii:4. A mere import ban that is not complemented by a regulation of domestic products would fall under gatt Article xi.

Whenever a measure is considered to be inconsistent with gatt Article iii, Article xi or any other provision under gatt, it must fulfil the requirements of Article xx in order to be compatible with the agreement. The state will have to prove that the measure serves a legitimate policy objective, with a sufficiently strong link to that objective. With regard to the measures considered in this chapter, states will probably argue that the measure either is necessary to protect human, animal or plant life or health, or is relating to the conservation of exhaustible natural resources. In the former case, the requirement that the measure must be necessary to reach the policy objective seems particularly challenging, especially with regard to bans. If the same effect can be produced through the use of a different, less trade-distorting measure (e.g. a tax or a label), a ban will not be justifiable. In the latter case, the measure is to be made effective in conjunction with restrictions on domestic production or consumption.

In the US Shrimp case, the Appellate Body accepted the protection and conservation of a species, such as marine turtles, as a legitimate policy objective even when that species does not spend all of its time or every life-cycle stage on the territory of the state invoking the exception. This does not mean, however, that the protection and conservation of exhaustible natural resources with no sufficient nexus to the territory of a state would equally be accepted as a legitimate policy objective under gatt Article xx. In this respect, a landlocked country may have a difficult position before a wto dispute settlement body to justify a measure infringing gatt Articles iii or xi in order to protect and conserve albatrosses of Midway Island (even if the items at stake can be found in the stomach of these albatrosses). Yet, plastic wastes and microplastics in the marine environment is an issue of global concern in that it negatively affects the environment and biodiversity in common areas, including the high seas and the deep seabed, the latter of which has been defined as the common heritage of mankind. Preventive measures that effectively reduce the risk of plastic accumulation in the marine environment should thus be admissible whether or not a state has access to the sea, if such measures are designed in the least trade-distorting way.1365

Once a sufficient link to a legitimate policy objective is demonstrated, the measure needs to pass the chapeau test. A ban corresponds to a halt in trade of a specific product and is therefore considered a rather harsh measure. In order to pass the chapeau test, facilitating factors include prior consultation, coordination and cooperation, or, if possible, an international agreement for the implementation of which the measure is taken.

iii Packaging Regulations and Other Technical Barriers to Trade

In order to curb plastic pollution, countries must be able to regulate a product over its entire life cycle, including its packaging. Packaging regulations are essential not only because 40 per cent of plastics are processed into packaging and the share of packaging in marine debris is particularly high, but also because packaging serves as a carrier of product information and advertising. Packaging regulations can thus refer to mandatory information on a product or the limitation of visual purchase incentives. Qualitative regulations promote the use of less harmful materials and packaging designs, better recyclability or degradability of packaging materials, as well as lower rates of chemical contamination. Quantitative regulations aim to limit the use of plastic packaging where this is compatible with sanitary standards.

Regulations on obligatory consumer information on packaging and the mandatory use of labels, as well as regulations on ppms (both product and non-product-related) are potential technical barriers to trade. They fall under the scope of the tbt. Mandatory packaging regulations have to meet the restrictive requirements of Article 2.2 tbt and shall not be more trade-restrictive than necessary to fulfil a legitimate objective, such as the protection of the environment.

In Australia – Plain Packaging, a number of states opposed a set of regulatory measures in Australia that included strict requirements on the packaging of cigarettes and cigars. The set of measures included requirements on the shape, material and colour of the packaging, uniform and unobtrusive labelling with the product brand, and the use of graphics and warnings that drew attention to the health consequences and risks of tobacco consumption, whereby these graphics and warnings had to cover significant parts of the front and back of the packaging.1366 The objective of the Australian measures was to improve public health by reducing the use of, and exposure to, tobacco products. In its report, the panel confirmed that the regulations were technical regulations within the meaning of Article 1.1 of the tbt Agreement, in that they applied to an identifiable product or group of products (tobacco); laid down one or more characteristics of those products (including with respect to their marking, packaging or labelling); and mandated compliance with those characteristics.

After thorough analysis of the measures, the panel concluded that the complainants had not demonstrated that the measures were more trade-restrictive than necessary to fulfil a legitimate objective, within the meaning of Article 2.2 of the tbt Agreement. In its analysis, the panel referred to the broader regulatory context of the measure, which included a number of other wide-ranging tobacco control measures, such as restrictions on advertisement and promotion, taxation measures, restrictions on the sale and consumption of tobacco products, social marketing campaigns, and measures to address illicit tobacco trade. The disputed measures were therefore to be seen as part of a comprehensive suite of reforms to reduce smoking and its harmful effects.1367 The complainants had not demonstrated that there were less trade-restrictive measures that could have achieved the same effect in this policy context. Australia – Plain Packaging shows that comprehensive and stringent regulation on packaging can be compatible with the tbt Agreement if it makes a meaningful contribution to a legitimate policy objective and is consistent with a country’s broader policy.

Similar to other agreements covered by the wto, international standards play an important role in the tbt Agreement. The tbt Agreement demands the use of relevant international standards as a basis for the regulations if such standards exist, unless their use is ineffective or inappropriate.1368 If regulations are in accordance with relevant international standards, they are presumed not to create an unnecessary obstacle to international trade.1369 The use of standards can thus play a decisive role in the implementation of unlcos Part xii and related provisions. Specifically, iso and other standardisation bodies can make an important contribution to improving the sustainability of plastic production, packaging, product design and trade.1370 iso/tc 323 and its Circular Economy series seem promising in this respect. Yet, especially in the field of packaging regulation, additional work seems necessary. It is noteworthy in this context, however, that in Australia – Plain Packaging, Australia had not demonstrated its measures to be in accordance with relevant international standards, but they nevertheless withstood before the panel.

To the extent that there is no conflict of rules, the gatt remains applicable in parallel. Under the national treatment obligation of both the tbt Agreement and the gatt, the question arises whether differentiation according to packaging is allowed. To the extent that the competitive relationship between packaging materials as such (e.g. plastic bottles vs. glass bottles) is at stake in a dispute concerning the packaging industry, the (empty) package will be considered as a product itself. By contrast, packaged goods (such as orange juice in plastic bottles versus orange juice in glass bottles) are considered as products including their packaging when it is the competitive relationship between these products, or their market access, that is at stake. To the extent that packaging has a significant impact on the product’s properties, nature and quality or consumer’s tastes and habits, differentiation between products based on packaging is allowed. The potential likeness of two differently packaged but otherwise identical products has thus to be considered on a case-by-case basis. If it is affirmed, discriminatory treatment between the two products is only compatible with the gatt if the conditions of the exceptions clause are met.

While so far, packaging regulations have been a minor issue in wto law, they are a topical matter in EU law, including with respect to thorough balancing of environmental and market concerns. Under the Packaging and Packaging Waste Directive, EU member states are bound to recovery and recycling targets, which are to be substantially increased in a process cycle of five years. They may strive for more ambitious targets than the ones defined in the directive, as long as the respective measures do not distort the internal market.1371 The European Commission is to verify that the measure do not constitute an arbitrary means of discrimination or a disguised restriction on trade between member states.1372 In addition, member states are required to set up systems for the return, collection, reuse or recovery, including recycling, of packaging and packaging wastes. These measures shall also apply to imported products under non-discriminatory conditions, including the detailed arrangements and any tariffs imposed for access to the systems, and shall be designed so as to avoid barriers to trade or distortions of competition in conformity with EU Law.1373

In general, packaging regulations, including marking requirements and obligatory take-back schemes, are essential features of extended producer responsibility policies, as requested under the Waste Framework Directive.1374 Redycling targets can only be realized if the necessary infrastructure is available (including with regard to waste collection, sorting, recycling or take-back schemes) and packaging is designed in a way that allows reuse or recycling. The Court of Justice decided in this respect that a EU Member State fails to fulfil its obligations related to the free movement of goods when it replaces a global packaging-collection system with a deposit and return system without affording producers and distributors a transitional period sufficient to enable them to adapt to the requirements of the new system. According to the Court, national rules capable of hindering trade within the EU may be justified by overriding environmental provisions only if the means which they employ are suitable for the purpose of attaining the desired objectives and do not go beyond what is necessary for that purpose.1375 Market considerations, at least with regard to the internal market, thus form an integral part of EU packaging regulation and explicitly limits the policy space of member states in this regard.

EU obligations related to the free movement of goods go beyond obligations related to non-discrimination under the auspices of the wto regime. The findings by the Court of Justice may nevertheless be relevant even under wto law.1376 Packaging regulations and deposit and return schemes can induce additional information costs, compliance costs and costs related to low volume or non-standard packaging. In particular, foreign small and medium-sized enterprises and companies from developing countries may de facto bear a higher burden when compared to local companies and thus be penalized by labelling and other packaging requirements.1377 Recycled content requirements for packaging may also be problematic for foreign enterprises if such requirements do not reflect their local environmental circumstances. Consultation with trading partners, transparency of the measures, adequate transition periods and consistency with international standards (where existing) seem thus crucial in this respect. Furthermore, packaging requirements are to be notified to the countries concerned and relevant international bodies.

C Evaluation: Implementation and the Role of Trade Law

In order to address marine plastic pollution from land-based sources, a broad range of measures have been adopted at different levels of governance, from subregional to local. They address different life-cycle stages of plastic products and include regulatory measures, market-based instruments and other measures. Overall, implementation is very uneven, both with regard to the types of measures applied as well as with regard to political priority setting and the level of protection achieved. While total or partial bans on products are common in many African countries, economic instruments and public–private partnerships typically conform to Western European policy traditions.1378 Plastic bag bans have also been introduced in Asian countries more than a decade ago, such as in Bangladesh. Owing to poor enforcement, however, single-use plastic bags and other single-use products continue to be widely used and mismanaged in several Asian countries.1379

With its holistic approach to marine litter, the European Union is playing a vanguard role with regard to subregional implementation. Apart from internal regulation on sustainable waste and resource management towards a circular economy, plastic consumption reduction, especially of single-use products, and good environmental status of the marine environment, the European Union’s strategy on the combat against marine litter includes extraterritorial aspects. It envisages plastic waste and marine litter reduction in several main contributing countries in East and South East Asia through technology and knowledge transfer and infrastructure projects. It moreover includes major research and innovation programmes contributing to the combat against marine plastic pollution. The effectiveness of the EU strategy very much depends on national implementation and enforcement within member states.

The US announced a more unilateral approach in 2018, but has never implemented it in this way. When he signed a bipartisan bill on marine debris in November 2018,1380 former President Trump announced trade measures against Asian countries, which he claimed bear the primary responsibility for the US ‘being inundated by debris from other countries’.1381 The former president notably held that the US ‘will be responding and very strongly’ in order to hold the ‘abusers’ of the oceans accountable for their global impact.1382 The then US Trade Representative, Robert Lighthizer, held in this respect that he thought of a ‘more novel trade remedy’, without however unsealing its character or content.1383 However, the bill and a follow-up bill signed in 2020 rather provide for cooperation with affected states, as well as US support and increased US engagement in relevant international fora. The 2020 bill also provides for consideration of an international agreement dealing with land-based sources of marine debris, as well as for the consideration of marine debris in other agreements, including free-trade and investment agreements.1384

The policy space of states with regard to marine litter management is partially framed by international trade regulation in general, and wto law in particular. wto law disciplines states in the adoption of measures, particularly with regard to arbitrariness and discriminatory treatment. Yet, the potential of conflict is limited when measures are formulated in a non-discriminatory way and equally affect domestic production and imported goods. This being the case, there have been little conflicts in international trade on measures addressing marine plastic pollution to date. While the virtual absence of such conflicts may be due to the fact that awareness of the size and significance of the problem has only arisen in recent years, the wide and fast proliferation of measures in combat against marine litter at regional, national and local levels does not bear witness to widespread concerns with respect to international trade law.

An intrdisciplinary research project on Transforming the Global Plastics Economy is currently investigating the impact of trade policy choices on plastic pollution. Experts involved are trying to better understand trade flows and how a transition to a more sustainable use of resources can be achieved. The wto can play an important role in this context, as a multilateral forum for trade cooperation and policy coherence. It could:

  1. promote transparency and monitoring of plastic trade flows, global supply chains and plastic-related trade interventions;
  2. serve as a forum for information sharing in this context; or
  3. promote policy coherence, including with regard to the reduction of tariff and non-tariff barriers to trade in plastic substitutes or technologies and services for waste disposal, recycling and cleaning.1385

The wto could also envisage reform with regard to:

  1. The likeness test and the role of non-product-related ppms: States should be able to differentiate between plastic products that, while exhibiting the same physical characteristics, have different marine plastic pollution footprints, for instance due to different pellet and waste management during production or due the use of different technologies and chemicals in the production process. Acceptance of non-product-related ppms as part of or along with the border tax criteria would allow a state to differentiate between plastic feedstock produced by the use of best practices against pellet loss, such as promoted under the Operation Clean Sweep, and other feedstock. Also, ppm-based measures regulating both import and domestic products should be dealt with under the national treatment obligation rather than as a form of a quantitative restriction, as the prohibition of quantitative restrictions does not base upon the competitive relationship among products, so that no likeness test is applied.
  2. Environmental exceptions and the link requirement: in view of the global scope of marine plastic pollution, its transboundary dispersal behaviour and the threat it poses to the global commons, the requirement of a sufficient nexus between an exhaustible natural resource to be protected by a specific measure and the territory of the state enacting the measure should be reconsidered.1386

After all, the analysis of the role of trade law in the implementation of unclos Article 192 and related obligations shows that international trade regulation can play a restraining role with regard to the adoption of measures with (negative) extraterritorial trade effects, especially with regard to measures aiming at influencing the behaviour of actors abroad and enforcing self-set standards in other countries, including in protection of the global commons. Whether with regard to packaging requirements or producer responsibility policies, transparency of the measures, consultation, notification and adherence to international standards seem key. As outlined above, wto law clearly gives preference to concerted action over unilateral actions.1387 This preference is in line with the core principles under unclos and general international law.

The implicit requirement under the chapeau of the exceptions clause that states have to make full use of diplomatic means prior to the adoption of a measure, including through, as the case may be, international negotiations, may be partially satisfied by ongoing international negotiations in the field of plastics. Given that such negotiations may take several years or decades and do not necessarily yield to a result, the chapeau requirement cannot hinder states from taking immediate action. Immediate action by states first and foremost focuses on the domestic level. However, marine plastic pollution is a shared responsibility. Hence, not only should states be allowed to deal with input sources abroad but it’s their responsibility to do so, in accordance with their capabilities. Input sources by foreign countries can be addressed either in a supportive way (by the use of technology and knowledge transfer, the dissemination of legal concepts and strategies, the provision of financial means, infrastructure projects etc.) or by trade remedies with the aim to exert pressure.1388

424

1982 unclos.

425

With regard to plastics, two of them are of particular importance: The Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (1972 London Dumping Convention) (adopted on 13 November 1972, entered into force on 40 August 1975) strictly prohibits dumping of wastes at sea from vessels, aircraft or offshore-installations. Disposal of plastics from vessels is also prohibited by Annex v of the International Convention for the Prevention of Pollution from Ships (signed on 2 November 1973) 1340 unts 184, 12 ilm 1319 (1973) and Protocol Relating to the International Convention for the Prevention of Pollution from Ships (adopted on 17 February 1978) 1340 unts 61, 17 ilm 546 (1978), both entered into force on 2 October 1983 (1973/78 marpol).

426

See, for instance, Derraik (n 287) 848.

427

Declaration of the United Nations Conference on the Human Environment (1972 Stockholm Declaration) in Report of the Stockholm Conference, UN Doc. a/conf.48/14/Rev. 1 (1972) 3, reprinted in 11 ilm 1416 (1972).

428

unga Res 2994 (xxvii) (1972), ‘United Nations Conference on the Human Environment’ para 2.

429

See Thomas A Mensah, ‘The International Legal Regime for the Protection and Preservation of the Marine Environment from Land-Based Sources of Pollution’ in Alan E Boyle and David Freestone (eds), International Law and Sustainable Development: Past Achievements and Future Challenges (Oxford University Press 1999) 299.

430

See Robin Rolf Churchill and Alan Vaughan Lowe, The Law of the Sea (3rd edn, Manchester University Press 1999) 379; Mensah (n 429) 312; Edward L Miles, ‘The Approaches of unclos and Agenda 21 – A Synthesis’ in Mochtar Kusuma-Atmadja, Thomas A Mensah and Bernard H Oxman (eds), Sustainable Development and Preservation of the Oceans: The Challenges of UNCLOS and Agenda 21 – Proceedings the Law of the Sea Institute Twenty-Ninth Annual Conference (Despansar, Bali, Indonesia, 1995) (Law of the Sea Institute 1997) 37.

431

unep, ‘Review of Development Activities Since 1985 – Note by the Secretariat’ unep/mg/ig/1/2 of 29 April 1994 515; Miles (n 430) 37.

432

Mensah (n 429) 300.

433

The Programme will be discussed more in detail in the second chapter of this part. In a nutshell, it comprises 14 regional programmes and four partner programmes, each of which addresses a region’s particular environmental challenges in an action plan. The regional programmes involve different legal settings: some of them have adopted a regional convention and a number of specific protocols in the subsequent years, while others do still not have any legal foundations. No conventions have yet been developed for the East Asian Seas, South Asian Seas, North-East Pacific or North-West Pacific regions. Also, there is no relevant legal agreement for the Arctic region.

434

In 1980, UN Environment convened a Working Group for this purpose, which led to the adoption by the UN Environment Governing Council, in 1985, of the Montreal Guidelines for the Protection of the Marine Environment against Pollution from Land-based Sources: unep, ‘1985 Montreal Guidelines’ (n 361). Though not legally binding in character, the Montreal Guidelines are one of the first global instruments on the subject. They address issues that are not regulated in unclos, such as the development of control strategies, the periodic adoption of implementation reports and the setup of institutional arrangements at the appropriate regional or global level. Three Annexes provide additional guidance for implementation. In addition, UN Environment established the Montevideo Programme for the Development and Periodic Review of Environmental Law (Montevideo Programme) in 1981. Marine pollution from land-based sources was one of three major subject areas of the programme. The involved experts generally approved UN Environment’s regional approach and referred to the work of the Third United Nations Conference on the Law of the Sea, the conclusion of which was now imminent. They expected the adoption of a global convention (unclos) that was to include guidelines and principles and address land-based sources of marine pollution: unep, ‘Montevideo Programme for the Development and Periodic Review of Environmental Law (1981)’ (unep Governing Council Decision 10/21 of 31 May 1982) 4. Calls for a specific convention on land-based sources have also been formulated and discussed by other bodies, but without any concrete results: see, for instance, imo, ‘Report of the 13th Consultative Meeting of the Contracting Parties to the 1972 London Dumping Convention’ (1990) UN Doc imo/ldc.13/15 Annex 4 para 2.

435

wced, Our Common Future (Brundtland Report) (Oxford University Press 1987). The UN General Assembly transmitted the report to all governments and UN bodies and invited them to take account of the report in determining their policies and programmes: unga Res 42/187 (1987), ‘Report of the World Commission on Environment and Development’ para 6.

436

wced (n 435) ch 10.i.

437

ibid ch 12.ii.2.2.1.

438

gesamp, ‘The State of the Marine Environment’ (n 283) para 431. According to the report, ‘major changes in long-established agricultural and industrial practices’ may be required, as well as ‘the development or expansion of waste treatment facilities both along the coast and far inland, sometimes well beyond the boundaries of the coastal states concerned’: ibid.

439

gesamp, ‘The State of the Marine Environment’ (n 283) para 376.

440

ibid 403–04.

441

unga Res 44/228 (1989), ‘United Nations Conference on Environment and Development’ ch i para 3.

442

John Karau, ‘The Control of Land-Based Sources of Marine Pollution’ (1992) 25 Marine Pollution Bulletin 80, 80; Mensah (n 429) 303; Netherlands Institute for the Law of the Sea, International Organizations and the Law of the Sea: Documentary Yearbook, vol 8 (1992) xxv. The main findings of the Halifax Meeting are summarized in unep, ‘Review of Development Activities Since 1985’ (n 431) 517 para 26–27.

443

Karau (n 442) 80.

444

As discussed at the unced Preparatory Committee’s third meeting in August 1991: see ibid 81.

445

Rio Declaration on Environment and Development (1992 Rio Declaration) in Report of the United Nations Conference on Environment and Development (1992), UN Doc a/conf.151/26 (Vol. i).

446

Important outcomes of the conference further include the UN climate and biodiversity conventions and the Forest Principles: United Nations Framework Convention on Climate Change (unfccc) (opened for signature on 9 May 1992, entered into force on 21 March 1994) 1771 unts 107; United Nations Convention on Biological Diversity (cbd) (opened for signature on 5 June 1992, entered into force on 29 December 1993) 1760 unts 79; Non-Legally Binding Authoritative Statement of Principles for a Global Consensus on the Management, Conservation and Sustainable Development of All Types of Forests (Forest Principles) (adopted on 14 June 1992) UN Doc a/conf.151/26 (Vol. iii). unced also paved the way for the adoption of a convention on sustainable land use: United Nations Convention to Combat Desertification in Countries Experiencing Serious Drought and/or Desertification, Particularly in Africa (unccd) (opened for signature on 17 June 1994, entered into force on 26 December 1996) 1954 unts 3, 33 ilm 1328 (1994).

447

For more information, see Alan Boyle and David Freestone, ‘Introduction’ in Alan Boyle and David Freestone (eds), International Law and Sustainable Development: Past Achievements and Future Challenges (Oxford University Press 1999); Philippe Sands and Jacqueline Peel, Principles of International Environmental Law (3rd edn, Cambridge University Press 2012) in particular ch 6; Jorge E Viñuales (ed), The Rio Declaration on Environment and Development: A Commentary (Oxford University Press 2015). See also Nicolas de Sadeleer, Environmental Principles: From Political Slogans to Legal Rules (Oxford University Press 2002).

448

See Alicia Barcena, ‘An Overview of the Oceans in Agenda 21 of the 1992 United Nations Conference on Environment and Development’ (1992) 25 Marine Pollution Bulletin 107, 107.

449

The chapter is entitled ‘Protection of The Oceans, All Kinds of Seas, Including Enclosed and Semi-Enclosed Seas, and Coastal Areas and the Protection, Rational Use and Development of their Living Resources’.

450

Agenda 21, Report of the United Nations Conference on Environment and Development, Rio de Janeiro, 3–14 June 1992, Vol I, Resolutions Adopted by the Conference (United Nations publication, Sales No E93I8 and corrigendum) para 17.18.

451

ibid para 17.22.

452

ibid para 17.25.

453

csd Decision 7/1, ‘Ocean and Sea’ (1999) E/1999/25 para 3(b).

454

See Alexander Yankov, ‘The Law of the Sea Convention and Agenda 21: Marine Environmental Implications’ in Alan Boyle and David Freestone (eds), International Law and Sustainable Development: Past Achievements and Future Challenges (Oxford University Press 1999) 273. On Chapter 17 of Agenda 21, see also Hassan (n 364) 93–95.

455

Agenda 21 (n 450) para 17.26.

456

Three preparatory expert meetings were held prior to the Washington Conference. At the final preparatory meeting, which was held in Reykjavik, Iceland, in March 1995, participants agreed on the objective to produce an effective programme of action instead of a legally binding instrument. They agreed that action should be taken at the global, regional and national levels: see Miles (n 430) 38.

457

‘Washington Declaration on Protection of the Marine Environment from Land-Based Activities’ (unep 1995).

458

unep, ‘Global Programme of Action for the Protection of the Marine Environment from Land-Based Activities’ (1995) UN Doc unep(oca)/lba/ig.2/7.

459

ibid para 3; 1982 unclos art 192.

460

unep, ‘gpa’ (n 458) para 3.

461

ibid paras 14–15.

462

ibid para 18. See David VanderZwaag and Ann Powers, ‘The Protection of the Marine Environment from Land-Based Pollution and Activities: Gauging the Tides of Global and Regional Governance’ (2008) 23 The International Journal of Marine and Coastal Law 423, 427–28.

463

unep, ‘gpa’ (n 458) para 23.

464

ibid para 26.

465

ibid para 27.

466

ibid para 31.

467

ibid paras 32–33.

468
ibid para 34. Reference to land-locked states is in line with Article 23 of the United Nations Convention on the Law of the Non-navigational Uses of International Watercourses (1997 Watercourse Convention) (adopted on 21 May 1997, entered into force on 17 August 2014) 36 ilm 700 (1997), UN Doc a/res/51/229 (1997). According to the Article,

Watercourse States shall, individually and, where appropriate, in cooperation with other States, take all measures with respect to an international watercourse that are necessary to protect and preserve the marine environment, including estuaries, taking into account generally accepted international rules and standards.

469

unep, ‘gpa’ (n 458) para 32(a).

470

ibid para 36.

471

ibid para 42.

472

ibid paras 36–37.

473

ibid para 38.

474

ibid paras 69–70.

475

gef, ‘Operational Strategy’ (1995) gef/c.6/3 ch 4 para 4.10.

476

See, for instance, undp and gef, ‘Plastics and Circular Economy Community Solutions’ (2019). The gef also assists ‘Addressing Marine Plastics: A Systemic Approach’, a project by UN Environment in collaboration with the New Plastics Economy, Ocean Conservancy, and grid-Arendal. The aim of the project is the developent of a strategic roadmap to help guide the transition to circular plastic economies at local, national and global scales, and stem the flow of plastic waste to the ocean.

477

unep, ‘gpa’ (n 458) paras 90 and 88, respectively. The request is consistent with two related decisions of the unep General Council: unep, ‘Development of an International Legally Binding Instrument for the Application of the Prior Informed Consent Procedure for Certain Hazardous Chemicals in International Trade, and Consideration of Further Measures to Reduce the Risks from Hazardous Chemicals’ (1995) unep/gc.18/12; unep, ‘Persistent Organic Pollutants’ (1995) unep/gc.18/32.

478

Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade (Rotterdam pic Convention) (adopted on 10 September 1998, entered into force on 24 February 2004, last revised on 10 May 2013) 2244 unts 393, 38 ilm 1 (1999); Stockholm Convention on Persistent Organic Pollutants (Stockholm pops Convention) (adopted on 22 May 2001, entered into force on 17 May 2004, last amended in 2015) 2256 unts 119, 40 ilm 532 (2001).

479

The nine main source categories identified are sewage, pops, radioactive substances, heavy metals, oils, nutrients, sediment mobilization, litter plastics, and physical alterations and degradation of habitats. See Biliana Cicin-Sain, ‘Earth Summit Implementation: Progress since Rio’ (1996) 20 Marine Policy 123, 131.

480

unep, ‘gpa’ (n 458) paras 140–48.

481

ibid para 144.

482

ibid paras 146 and 148.

483

unga Res 51/189 (1996), ‘Institutional Arrangements for the Implementation of the Global Programme of Action for the Protection of the Marine Environment from Land-Based Activities’. UN Environment made the implementation of the gpa a top priority: see unep, ‘Implementation of the Global Programme of Action for the Protection of the Marine Environment from Land-Based Activities’ (1997) unep/gc.19/14a. See also Mensah (n 429) 309.

484

See unep, ‘gpa’ (n 458) paras 74–75.

485

Mainstreaming work was successful in that different bodies (such as the csd and the UN General Assembly) referred to the gpa and addressed a number of issues relevant to their fields of work.

486

Effectiveness of the gpa is discussed in Hassan (n 364) 98–100; Bettina Meier-Wehren, ‘The Global Programme of Action for the Protection of the Marine Environment from Land-Based Activities’ (2013) 17 nzj Envtl. L. 1, 36–40; VanderZwaag and Powers (n 462) 429–42. See also implementation reports by UN Environment: unep, ‘Report of the First Intergovernmental Review Meeting on the Implementation of the Global Programme of Action for the Protection of the Marine Environment from Land-Based Activities’ (2001) unep/gpa/igr.1/9; ‘Report of the Second Session of the Intergovernmental Review Meeting on the Implementation of the Global Programme of Action for the Protection of the Marine Environment from Land-Based Activities’ (2006) unep/gpa/igr.2/7.

487

These key challenges are discussed in VanderZwaag and Powers (n 462) 438–42.

488

Johannesburg Plan of Implementation in Report of the World Summit on Sustainable Development (2002), UN Doc a/conf.199/20 para 33. After the conferences in Stockholm in 1972 and in Rio in 1992, the wssd was the third UN Conference on environment and development. The conference mainly served for reaffirming and refining existing principles and policies, including Agenda 21: see Patricia Birnie, Alan Boyle and Catherine Redgwell, International Law and the Environment (3rd edn, oup Oxford 2009) 53.

489

Johannesburg Plan of Implementation para 33(b). At the wssd, the establishment of a regular process under the UN for global reporting and assessment of the state of the marine environment was recommended: see unga Res 57/141 (2002), ‘Oceans and the Law of the Sea’ Preamble. The Regular Process for Global Reporting and Assessment of the State of the Marine Environment Including Socioeconomic Aspect was subsequently established through a number of resolutions. Its first cycle ran from 2010 to 2014, the second cycle from 2015 to 2020. The two World Ocean Assessment reports are available online: ‘Regular Process’ <https://www.un.org/regularprocess/> accessed 19 February 2022. Chapters 25 and 12 deal with marine debris: see Wang and others (n 342); Francois Galgani and others, ‘Chapter 12: Changes in Inputs and Distribution of Solid Waste, Other Than Dredged Material, in the Marine Environment’, Second World Ocean Assessment (United Nations 2021).

490

See unga Res 55/7 (2001) para 27; Res 75/239 (2021) paras 217 and 244–46.

491

Meetings were held in Montreal, Canada (2001), in Beijing, China (2006), in Manila, the Philippines (2012), and in Bali, Indonesia (2018).

492

unep and gpa, The State of the Marine Environment: Trends and Processes (unep/gpa Coordination Office 2006).

493

ibid 28.

494

ibid 34.

495

‘Manila Declaration on Furthering the Implementation of the Global Programme of Action for the Protection of the Marine Environment from Land-Based Activities’ (2012) unep/gcss.xii/inf/10, Annex Preamble.

496
ibid para 5. To this purpose, they defined strategic directions, including:

Working with all stakeholders concerned to find innovative solutions and initiatives to the problem of marine litter, including by sharing best practices, technical information about capacity-building and legal, policy, community-based, economic and market-based means of preventing, reducing and managing marine litter, and working to establish a global partnership on marine litter.

497

See unep and noaa, ‘Summary Proceedings of the 5th International Marine Debris Conference, Held on 20–25 March 2011 in Honolulu, HI, USA’ (2011) 4.

498

Stakeholder engagement rapidly increased in the last couple of years. Several national agencies, private companies and business associations have organized international conferences on the topic of marine debris and marine plastic pollution.

499

These are two out of 12 commitments: see ‘Honolulu Commitment’ (2011) <https://5imdc.files.wordpress.com/2011/03/honolulucommitment.pdf> accessed 19 February 2022.

500

unga Res 66/231 (2011), ‘Oceans and the Law of the Sea’ para 141.

501

unep and noaa, ‘The Honolulu Strategy: A Global Framework for Prevention and Management of Marine Debris’ (2011).

502

ibid Executive Summary.

503

The icp was established by unga Res 54/33 (1999) para 2, in consistency with the legal framework provided by unclos and the goals of chapter 17 of Agenda 21. The primary task of the icp is to facilitate the annual review by the General Assembly of developments in ocean affairs ‘by suggesting particular issues to be considered by it, with an emphasis on identifying areas where coordination and cooperation at the intergovernmental and inter-agency levels should be enhanced’.

504

unga Res 59/24 (2004), ‘Oceans and the Law of the Sea’ para 92.

505

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 Sixth Meeting’ (2005) UN Doc A/60/99.

506

iisd, ‘Summary of the Seventeenth Meeting of the United Nations Open-Ended Informal Consultative Process on Oceans and the Law of the Sea: 13–17 June 2016’ (2016) 25 Earth Negotiations Bulletin: icp-17 Final 12 <https://enb.iisd.org/events/icp-17/summary-report-13-17-june-2016> accessed 19 February 2022.

507

unga, ‘Report of ICP-17 (2017)’ (n 11) para 12; unga Res 72/73 (2017) (n 11) para 188.

508

unga, ‘Report of ICP-17 (2017)’ (n 11) para 23.

509

While UN Environment had published on the subject before, a first series of information documents was issued in 2009: see unep, Marine Litter – Trash That Kills (n 296); Marine Litter: An Analytical Overview (n 289); Marine Litter (n 284); G Macfadyen, Tim Huntington and Rod Cappell, Abandoned, Lost or Otherwise Discarded Fishing Gear (unep/fao 2009); Anthony Cheshire and others, UNEP/IOC Guidelines on Survey and Monitoring of Marine Litter (unep/ioc 2009); ten Brink and others (n 407). Since 2015, UN Environment supported a broad range of publications focusing on marine plastic pollution or related subjects: see unep, Plastic in Cosmetics: Are We Polluting the Environment through Our Personal Care? (2015); Biodegradable Plastics & Marine Litter: Misconceptions, Concerns and Impacts on Marine Environments (n 51); unep and grid-Arendal (n 376); unep, ‘Marine Litter Legislation: A Toolkit for Policymakers’ (unep 2016); ‘Marine Plastic Debris and Microplastics: Global Lessons and Research to Inspire Action and Guide Policy Change’ (2016) (unea-2 Technical Report on Marine Plastic Debris); ‘Combating Marine Plastic Litter and Microplastics: An Assessment of the Effectiveness of Relevant International, Regional and Subregional Governance Strategies and Approaches – Summary for Policy Makers’ (2018) unep/aheg/2018/1/inf/3; ‘Addressing Marine Plastics: A Systemic Approach – Stocktaking Report’ (2018); ‘Mapping of Global Plastics Value Chain’ (n 90); Single-Use Plastics: A Roadmap for Sustainability (n 94); ‘Legal Limits on Single-Use Plastics and Microplastics: A Global Review of National Laws and Regulations’ (2018); ‘Plastics and Shallow Water Coral Reefs: Synthesis of the Science for Policy-Makers’ (2019); gesamp, ‘Guidelines for the Monitoring and Assessment of Plastic Litter in the Ocean’ (2019) 99 Reports and Studies; GA Circular, ‘The Role of Gender in Waste Management: Gender Perspectives on Waste in India, Indonesia, the Philippines and Vietnam’ (Report commissioned by Ocean Conservancy 2019); unep, Addressing Single-Use Plastic Products Pollution Using a Life Cycle Approach (n 159). In 2015, UN Environment also launched a massive open online course on marine litter with more than 6,500 participants. The course has been relaunched every two years.

510

The issue has been addressed by the cbd in reports, special workshops and in cop decisions: see stap, ‘Marine Debris as a Global Environmental Problem: Introducing a Solutions Based Framework on Plastic’ (gef 2011); cbd Secretariat and stap, ‘Impacts of Marine Debris on Biodiversity: Current Status and Potential Solutions’ (2012) cbd Technical Series 67; cbd cop Decision xi/18 (2012), ‘Marine and Coastal Biodiversity: Sustainable Fisheries and Addressing Adverse Impacts of Human Activities, Voluntary Guidelines for Environmental Assessment, and Marine Spatial Planning’ unep/cbd/cop/dec/xi/18 paras 25–27; cbd, ‘Report of the Expert Workshop to Prepare Practical Guidance on Preventing and Mitigating the Significant Adverse Impacts of Marine Debris on Marine and Coastal Biodiversity and Habitats’ (2014) unep/cbd/mcb/em/2014/3/2. See also Section 2.1.D.i.1) below.

511

unga Res 67/78 (2012) para 142; Res 68/70 (2013) paras 152 and 164; Res 69/245 (2014) paras 163, 181 and 298; Res 70/235 (2015) paras 170, 188–90 and 192; Res 71/257 (2016) paras 182–84 and 204–10; Res 72/73 (2017) paras 186–88 and 208–14; Res 73/124 (2018) paras 207–14 and 221; Res 74/19 (2019) paras 217 ff; Res 75/239 (2021) paras 217 ff.

512

unga Res. 66/288 (2012), annex, ‘The Future We Want’ para 158.

513

ibid para 163.

514

For more information, see gpml Secretariat, ‘GPML Framework Document’ (October 2018) <https://marinelitternetwork.engr.uga.edu/wp-content/uploads/2018/03/gpml_framework_document.pdf> accessed 19 February 2022.

515

unga Res 70/1 (2015), ‘Transforming Our World: The 2030 Agenda for Sustainable Development’.

516

See iisd, ‘Summary of the Ocean Conference: 5–9 June 2017’ (2017) 32 Earth Negotiations Bulletin: Ocean Conference Final.

517

The hlpf meets annually. hlpf 5 (July 2017) addressed the implementation of five sdgs, including sdg 14. Plastic discharge into the oceans was also discussed at the first hlpf meeting that took place under the auspices of the General Assembly at the level of Heads of State and Government in September 2019: unga Res 74/4 (2019), ‘Political Declaration of the High-Level Political Forum on Sustainable Development Convened under the Auspices of the General Assembly’ para 20.

518

unga, ‘Our Ocean, Our Future: Call for Action’ (a/conf230/11, Annex 2017) para 13(g–i).

519

unga Res. 66/288 (2012), annex (n 512) para 88.

520

unea Resolution 1/6 (2014), ‘Marine Plastic Debris and Microplastics’ unep/ea.1/Res.6 para 4.

521

unep, ‘