Legal and Policy Options to handle Marine Littering – with special Emphasis on Plastic Waste
Docteur en Droit, Aarhus University (Denmark)
Chercheuse invitée au Programme Human Sea/
Doctor of Law, Visiting Researcher on the Programme Human Sea
Since the 1960’s, plastic bags and plastic packaging made their way into the consumers’ everyday life. Nowadays, the extent to which this kind of packaging is used, seems pathetic. Single pieces of fruit and vegetables wrapped in plastic in the supermarket, multiple layers of wrapping must be peeled off other goods one purchases more or less regularly. Only a relatively short time ago, the public became aware of the rather disastrous consequences that the excessive use of synthetics over decades had on the environment.1 It can take more than 400 years for a piece of plastic waste to break down in the marine environment, and recyclable PET bottles are not biodegradable at all.2
Manifold pictures of plastic waste in the seas and the damage resulting from it can be found on the internet: Marine mammals tangled in nets, dead and partially decomposed birds with their guts full of plastic caps and other small parts of litter. However, the visible pieces of waste are only the tip of the iceberg. The bigger challenge is posed by so-called micro plastics which are either contained in cosmetic products or the result of degradation of bigger items of rubbish. Micro plastics are ingested by marine creatures with or instead of their sustenance and accumulate in the food chain. According to the United Nations Clean Seas initiative, at least about eight million tons of plastics end up in the ocean each year.3
Other sources of pollution, and most prominently oil pollution, have been subject to heavy debates and legal regulation for decades.4 Compared to that, the necessity to handle the problem of marine littering is still rather new on the common agenda. This may be due to the fact that oil pollution has been a problem for longer time and it has both immediately visible and long-term consequences while the consequences of plastic waste pollution only show after a certain amount has accumulated both visibly in the seas and invisibly in the food chain. The best-known accumulation of debris is the Great Pacific Garbage Patch. Besides that, plastic parts have been spotted in remote areas of the high seas, the entire water column and even frozen in sea ice.5
Marine littering must be handled from two sides: existing garbage must be removed, and new pollution must be prevented. Waste disposal as a whole is not regulated in international environmental law.6
The International Maritime Organisation (IMO) started addressing the problem of plastic disposal from ships almost 30 years ago.7 According to the MARPOL Annex V, discharge of garbage from ships into the sea is forbidden except for a number of cases where it is explicitly permitted. This annex applies to vessels of any type.
The dumping of waste at sea is regulated by the London Convention.8 Under the scope of the 1996 Protocol of the convention, the dumping of waste at sea from ships or aircrafts is forbidden except for a limited number of certain kinds of waste.
Yet, the majority of plastic pollution, an estimated 70 to 80%9, originates from land-based sources and is washed into the oceans through the rivers. It is estimated that 95% of the debris in the oceans comes from just ten rivers.10 Thus the existing conventions and EU frameworks only cover a minor part of the litter.
On international level, also the Regional Seas programmes of the United Nations try to strengthen laws preventing both individuals and industrial actors from dumping waste into the seas.11 In December 2017, the UN adopted a resolution in order to handle the plastic waste problem. However, this resolution has neither a timetable nor is it legally binding as the US, India and China refused to include a call on nations in the resolution.12
The strategy of the EU Commission in this regard is to set less prohibitions but more environmental standards. The problem has been addressed in the 7th Environment Action Programme and also the Marine Strategy Framework Directive is relevant in this matter.
The Directive was adopted in 2008 and aims at achieving Good Environmental Status for EU marine waters by 2020. As regards litter, this means that “properties and quantities of marine litter do not cause harm to the coastal and marine environment”.13 However, it is questionable whether this is still feasible since the impairment of the marine environment continues – among others due to pollution caused by marine litter.
The 7th Environment Action Programme was adopted in 2013 and determines the EU environmental policy until 2020. The main goal of this programme is to protect, conserve and enhance the EU’s natural capital.
In 2015, the 1994 Directive on Packaging and Packaging Waste was amended. The version from 1994 qualified plastic bags as packaging but did not contain any measures regarding the consumption of such bags. In its article 1, section 2, the amending 2015 directive obliges the Member States to take measures to achieve a sustained reduction in the consumption of lightweight plastic carrier bags. By 2019, the consumption shall no longer exceed 90 of these bags per person per year and a further reduction to 40 bags per person and year is envisaged by 2021. Yet, article 1, section 2 lit. a states that the so-called very lightweight plastic bags may be excluded from these consumption objectives. This exception is rather problematic as exactly those bags due to their basically non-existing weight are most likely to be accidentally lost and end up in the oceans at some point.
Just like concerning other kinds of pollution, one must consider if civil liability would be an appropriate mean to limit the marine pollution through plastic waste.
The problem with regard to this type of pollution is that it is not only caused by commercial actors but also by private individuals where it is basically impossible to trace who has thrown which items away so that they end up in marine waters.
But by means of civil liability, one could probably get hold of commercial actors systematically polluting the seas. The challenge in this context is the uncountable number of individual polluters and how to assess the actual damage every single one of them causes.
So the most effective mean to prevent further pollution is to start at the source, i.e. reduce the use of plastic, particularly of single-use plastic items and, where it is unavoidable, ensure effective recycling measures. Standards and rules can be imposed on commercial actors in order to prevent too many plastic items from circulating.
One option to achieve this goal is the principle of extended producer responsibility (EPR). The policy approach of extended producer responsibility means that a significant financial or physical responsibility is imposed on producers regarding treatment or disposal of post-consumer goods.14 The concept was first formally outlined in 1990 in a Swedish government report. It is often implemented through rules requiring the producers to take back packaging or the products as such after they have been used.15 The concept is also part of the General Union Environment Action Plan and the 7th Environmental Action Programme.16 This plan also contains the aim of establishing a coherent policy framework regarding sustainable production and consumption. Legal frameworks shall be enacted where it is appropriate.17 And one must also raise awareness among the consumers in order to make them change their habits since the consumers’ behaviour will also influence the market.
Incentives must be provided to encourage recycling efforts as well as a functioning recycling system. In addition, the responsible bodies must foster the research and development on biodegradable alternatives. So far, it is not fully clear to which extent the actual so-called biodegradable plastics actually degrade in the natural environment. In an UNEP report from 2015, it is even being questioned whether the use of biodegradable plastic will reduce the problem of marine littering at all.18
Following the above mentioned EU Directive from 2015, supermarkets in many Member States do not hand out free bags any longer, and neither do some clothing stores.
The most recent initiative on EU level is the European Strategy for Plastics in a circular Economy. It aims at ensuring all plastic packaging to be recyclable by 2030. Increased recycling of plastics is also expected to significantly reduce CO2 emission. In this context, recycling of one million tons of plastics is estimated to correspond to one million cars off the roads.19
- Derraik, José G.B. The pollution of the marine environment by plastic debris: a review Marine Pollution Bulletin Vol. 44 (2002), p. 242.
- http://www.imo.org/en/MediaCentre/HotTopics/marinelitter/Pages/default.aspx; https://www.theguardian.com/environment/2017/mar/13/waste-plastic-food-packaging-recycling-throwaway-culture-dave-hall.
- See e.g. CLC Convention on Civil Liability for Oil Pollution Damage which entered into force in 1975.
- Sands, Philippe/Peel, Jacqueline Principles of International Environmental Law, p. 562.
- 1972 Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter.
- MARLISCO Guide for Reducing Marine Litter, p. 17.
- Tibbets, John H. Managing Marine Plastic Pollution: Policy Initiatives to Address Wayward Waste, Environmental Health Perspectives, Vol. 123 (2015).
- European Commission General Union Environment Action Programme to 2020 – Living well, within the limits of our planet, p. 40.
- European Commission General Union Environment Action Programme to 2020 – Living well, within the limits of our planet, p. 44.
- UN Environment Programme Biodegradable Plastics and Marine Litter: Misconceptions, concerns and impacts on marine environments, p. 6.
- Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, p. 3.