16 November 2021

Marine Plastic Pollution Rule of Law: Why We Shy Away from It?


Oceans are polluted by plastic and it has worsened during the COVID 19 pandemic

Oceans cover 71% of the Earth’s surface, and their vastness is integral to life on Earth. Unfortunately, currently our oceans are full of plastic pollution. At least 8 million tons of plastic end up in the oceans every year.  Developing countries, such as China, India, Indonesia, and the Philippines are among the 5 worst plastic polluters in the world.  The accumulation of plastic in the oceans, and its adverse impact on marine life, has worsened during this COVID 19 pandemic.

Although protection of the marine environment can come in many forms, these ultimately rely on legal instruments as the backbone of protection. But determining issues within the legal instrument for marine plastic pollution is complicated. This article discusses several main issues pertaining to marine plastic pollution rule of law. 

First, we have been relying on plastics (especially the single use plastics) because they are ‘cheap, safe, and simple’. This mindset needs to change because single use plastics are not cheap, safe and simple, especially since they are not recyclable.  Let us think of the amount of time plastic takes to biodegrade and become part of our natural environment, which ranges from 60-500 years. Estimates suggest that we only recycle 9% of waste plastic, and 12% is incinerated.

The rest ends up in landfills or in our environment, including the oceans. Imagine the price we pay for the impact of those plastics staying in our environment for 500 years, including the health costs from that plastic waste to our environment; in land, on the ocean and marine life. Marine plastic pollution rule of law is about changing the mindset and introducing  eco-friendly alternative materials to replace single use plastics.  An example of this would be the protection for the ozone layer through Montreal Protocol (1987). This global action successfully eliminate substances which depletes the earth’s ozone layer after 30 years, through many efforts, evidently changing the mindset of people to depart from production and consumption of ozone depleting substances and introducing environmentally safe substances technology.

Second, the complication of liability and compensation in marine plastic pollution. Liability means being legally responsible for something, in the case: pollution. In the case of marine plastic pollution, the “Polluter-pays principle” appears to be the clear-cut answer, but it poses questions in terms of liability.  The principle takes place when an activity affects society at large, and it is only fair for this “cost” to be assumed by the one benefitting from the activity. Complications for marine plastic pollution is to determine who benefits from disposing of plastic waste into the ocean. Marine plastic pollution arises from many land-based and ocean-based sources, scattered across the jurisdiction of many states. S Maljean-Dubois and B Mayer (2020) stated that liability can also be imposed on corporations that produce plastic, on those who provide it to consumers, on consumers themselves, or even on those who dispose of plastic waste in the environment, and states. A liability regime focused on compensation would not be an appropriate solution to marine plastic pollution because of the difficulties in determining the recipient for the compensation. 

W.C. Li et al (2016) stated that the main evidence for marine plastic pollution are its ecological impacts, which also can spread to multiple jurisdictions. The UN Convention on the Law of the Sea (1982) and other treaties require states to prevent, reduce, and control the discharge of pollutants into the marine environment including plastics.  Marine plastic pollution may result from breaches of international law obligations, and this is attributable to states. This means that the State Responsibility principle is applicable in the marine plastic pollution cases.  The Trail-Smelter Case (1941) stated that State Responsibility requires a wrongful act attributable to state, and transboundary harm to occur. The question here is which state/s this occurs when the plastic debris are floating all over the earth’s ocean? The possible answer is all states. Environmental restoration, for example, is more suitable solution for marine plastic pollution, rather than focusing on the liability as it is too diffused to be determined.   

Third, what can be arranged for marine plastic pollution rule of law? As a comparison, in the climate change regime, the Paris Agreement (2015) doesn’t involve or provide a basis for any liability or compensation, but aims more at enhancing knowledge and coordination, action and support, including finance, technology and capacity-building, to address loss and damage. This example of creating a new regulatory framework through treaty obligations might be the most applicable framework for the marine plastic pollution regime. States are to regulate plastic from the upstream – downstream, from curbing production to handling consumption, and up to plastic waste management

The real implementation of reducing marine plastic pollution will be in the national and local levels where people are handling plastic waste firsthand, from extraction, production, fabrication, use/reuse, to disposal as waste.  Many provinces and districts in Asian countries are still out of touch on how to curb marine plastic pollution.  International or regional legal frameworks on marine plastic pollution will motivate national governments to encourage their regional/local governments, and stakeholders, to adopt measures to curb marine plastic pollution. 

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