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
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,
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
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
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,
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
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
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
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.
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
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,
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)
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
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
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
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:
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
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 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
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
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.
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 |
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 |
See unep, ‘unea-2 Technical Report on Marine Plastic Debris’ (n 514) 6–7.
- –accelerate actions to prevent and significantly reduce marine pollution of all kinds, particularly from land-based activities, including marine debris, plastics and microplastics;
- –promote waste prevention and minimization;
- –develop sustainable consumption and production patterns;
- –implement long-term and robust strategies to reduce the use of plastics and microplastics, in particular plastic bags and single-use plastics.518
- –global and national reduction targets;
- –design standards;
- –phasing out avoidable plastic products;
- –facilitation of national and regional action plans;
- –sharing of scientific knowledge through a scientific panel and utilizing globally harmonized monitoring methodology;
- –international coordination of financial and technical resources.
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
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
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:
- –the concept of ‘needs’, in particular the essential needs of the world’s poor, to which overriding priority should be given; and
- –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
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
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
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
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 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
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
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
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
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
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
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 i–xi) 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).
i Maritime Zones
Marine spaces include the seabed and its subsoil, the superjacent water column and the airspace above the sea. In Parts i–xi, 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
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)
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
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
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.
Maritime zones according to unclos
adapted from a picture by historicair, <
2)
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 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
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
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
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,
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.
- –biological substances (such as pathogenic microorganisms or invasive species);
- –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);
- –radionuclides from a variety of activities; and
- –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
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
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
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.
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
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
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
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
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:
[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
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
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
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 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
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
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
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:
- –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;
- –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;
- –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:
- –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);
- –the obligation to cooperate at different levels of governance and to provide assistance (global and regional cooperation); and
- –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
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:
- –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.);
- –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; - –the safe regulation of chemicals, including persistent organic pollutants and endocrine disruptors in plastics; and
- –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
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.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.
States have to adhere to the international rules and standards in the adoption of national legislation and other measures.718 - 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
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
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:
- –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.
- –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.
- –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
- –
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
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
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
In light of these arguments, it can be concluded that:
- 1.With few exceptions, there is a lack of global binding instruments on land-based pollution sources, and plastic pollution in particular;
- 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.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.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.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
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
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
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
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
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
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)
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
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
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
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
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
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.
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,
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
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
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
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
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
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
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
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
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
There are different sets of rules that are relevant in this regard:
- –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
- –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 - –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)
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:
- 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;
- b.whether the countries in breach of their obligation can be held responsible for it; and
- 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
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
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
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:
- –the identification of a single state to which the pollution is attributable;
- –the establishment of a causal link between causes and effects, especially with regard to diffuse sources and cumulative effects;
- –the determination of the standard of care with respect to marine plastic pollution mitigation in the absence of binding international standards; and
- –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
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
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
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
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
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
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
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
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
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
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)A dispute arises between parties concerning the interpretation or application of the convention;
- 2)the requirements of Section 1 are satisfied, unless otherwise agreed by the parties; and
- 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
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
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
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
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.
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
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.
- –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.
- –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.
- –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 - –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.
- –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
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
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
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.
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
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):
- –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 - –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
- –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.
- –
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
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
ii
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
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
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
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
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.
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)
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:
- –the product’s properties, nature and quality;
- –the product’s end uses in a given market;
- –consumers’ tastes and habits; and
- –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,
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
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.
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
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
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.fall under one of the particular exceptions enumerated in paragraphs a–j (provisional justification); and
- 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
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
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 ‘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
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
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
iii General Remarks Regarding the Relationship between unclos Part xii and wto Law
- –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
- –
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. - –Relation of wto law to multilateral environmental agreements:1051
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
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
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
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
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
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
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
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
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)
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
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
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
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
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
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
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
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
The Basel Convention is administered by UN Environment and currently has 188 parties.1146 In 1999, the Basel Protocol on Liability and Compensation
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 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
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,
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
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
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
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
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.
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
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
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
The Regional Seas Family
source: Adapted from UNEP, Marine Litter: A Global Challenge (UNEP 2009) 16.
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
The Arctic and Antarctic regimes are considered partner programmes, too. The Antarctic is governed by the Antarctic Treaty1197 and related instruments,
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
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.
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) |
|
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) |
|
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 |
||||
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 |
||
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
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
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
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
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
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 |
|||||||||||||||||||||||||||||||
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 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:
- –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;
- –the development and application of codes of good environmental practice which cover all aspects of the activity in the product’s life;
- –the mandatory application of labels informing users of environmental risks related to a product, its use and ultimate disposal;
- –saving of resources, including energy;
- –making collection and disposal systems available to the public;
- –avoiding the use of hazardous substances or products and the generation of hazardous waste;
- –recycling, recovery and reuse;
- –the application of economic instruments to activities, products or groups of products; and
- –the establishment of a system of licensing, involving a range of restrictions or a ban.1222
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
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
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.
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 |
|||||||||||||||||||||||||||||||
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.
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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 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
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
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.
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
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.
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. |
– 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. |
– 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. |
– 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. |
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
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
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,
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
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.
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 |
For a list of national bans, including impact assessment, see unep, Single-Use Plastics: A Roadmap for Sustainability (n 94) 27ff.
See Microbead-Free Waters Act of 2015 (United States), 21 U.S.C. 331 (2015).
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).
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.
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).
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.
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.
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.
For a list of examples, see unep, Single-Use Plastics: A Roadmap for Sustainability (n 94) 21–22.
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:
- –Extended producer responsibility, especially with regard to single-use packaging items;
- –
eco-friendly product design to facilitate reuse, repair, remanufacture and recycling; - –bans for unnecessary and damaging products or activities where viable substitutes exist (e.g. microbeads in cosmetics);
- –improved legislation;
- –economic incentives targeting consumption in implementation of the polluter pays principle;
- –transparency and labelling, especially with regard to toxic additives in plastics;
- –enhanced waste management, including with regard to infrastructure and waste treatment; and
- –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.
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
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
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
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
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
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
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
- –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.
- –Export bans and restrictions: especially in implememtation of the plastic amendments to the Basel Convention.
- –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)
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
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
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
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
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
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
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
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:
- –promote transparency and monitoring of plastic trade flows, global supply chains and plastic-related trade interventions;
- –serve as a forum for information sharing in this context; or
- –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:
- –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. - –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
See Section 2.1.A.i.5) below.
1982 unclos.
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).
See, for instance, Derraik (n 287) 848.
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).
unga Res 2994 (xxvii) (1972), ‘United Nations Conference on the Human Environment’ para 2.
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.
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.
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.
Mensah (n 429) 300.
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.
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.
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.
wced (n 435) ch 10.i.
ibid ch 12.ii.2.2.1.
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.
gesamp, ‘The State of the Marine Environment’ (n 283) para 376.
ibid 403–04.
unga Res 44/228 (1989), ‘United Nations Conference on Environment and Development’ ch i para 3.
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.
Karau (n 442) 80.
As discussed at the unced Preparatory Committee’s third meeting in August 1991: see ibid 81.
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).
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).
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).
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.
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’.
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.
ibid para 17.22.
ibid para 17.25.
csd Decision 7/1, ‘Ocean and Sea’ (1999) E/1999/25 para 3(b).
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.
Agenda 21 (n 450) para 17.26.
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.
‘Washington Declaration on Protection of the Marine Environment from Land-Based Activities’ (unep 1995).
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.
ibid para 3; 1982 unclos art 192.
unep, ‘gpa’ (n 458) para 3.
ibid paras 14–15.
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.
unep, ‘gpa’ (n 458) para 23.
ibid para 26.
ibid para 27.
ibid para 31.
ibid paras 32–33.
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.
unep, ‘gpa’ (n 458) para 32(a).
ibid para 36.
ibid para 42.
ibid paras 36–37.
ibid para 38.
ibid paras 69–70.
gef, ‘Operational Strategy’ (1995) gef/c.6/3 ch 4 para 4.10.
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.
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.
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).
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.
unep, ‘gpa’ (n 458) paras 140–48.
ibid para 144.
ibid paras 146 and 148.
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.
See unep, ‘gpa’ (n 458) paras 74–75.
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.
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.
These key challenges are discussed in VanderZwaag and Powers (n 462) 438–42.
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.
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’ <
See unga Res 55/7 (2001) para 27; Res 75/239 (2021) paras 217 and 244–46.
Meetings were held in Montreal, Canada (2001), in Beijing, China (2006), in Manila, the Philippines (2012), and in Bali, Indonesia (2018).
unep and gpa, The State of the Marine Environment: Trends and Processes (unep/gpa Coordination Office 2006).
ibid 28.
ibid 34.
‘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.
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.
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.
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.
These are two out of 12 commitments: see ‘Honolulu Commitment’ (2011) <
unga Res 66/231 (2011), ‘Oceans and the Law of the Sea’ para 141.
unep and noaa, ‘The Honolulu Strategy: A Global Framework for Prevention and Management of Marine Debris’ (2011).
ibid Executive Summary.
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’.
unga Res 59/24 (2004), ‘Oceans and the Law of the Sea’ para 92.
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.
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 <
unga, ‘Report of ICP-17 (2017)’ (n 11) para 12; unga Res 72/73 (2017) (n 11) para 188.
unga, ‘Report of ICP-17 (2017)’ (n 11) para 23.
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.
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.
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.
unga Res. 66/288 (2012), annex, ‘The Future We Want’ para 158.
ibid para 163.
For more information, see gpml Secretariat, ‘GPML Framework Document’ (October 2018) <
unga Res 70/1 (2015), ‘Transforming Our World: The 2030 Agenda for Sustainable Development’.
See iisd, ‘Summary of the Ocean Conference: 5–9 June 2017’ (2017) 32 Earth Negotiations Bulletin: Ocean Conference Final.
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.
unga, ‘Our Ocean, Our Future: Call for Action’ (a/conf230/11, Annex 2017) para 13(g–i).
unga Res. 66/288 (2012), annex (n 512) para 88.
unea Resolution 1/6 (2014), ‘Marine Plastic Debris and Microplastics’ unep/ea.1/Res.6 para 4.
unep, ‘UNEA-2 Technical Report on Marine Plastic Debris’ (n 509).
unea Resolution 2/11 (2016), ‘Marine Plastic Litter and Microplastics’ unep/ea.2/Res.11 para 21.
unep, ‘UNEA-3 Legal Report’ (n 414). See also unep, ‘UNEA-3 Legal Report – Summary for Policy Makers’ (n 509).
unea Resolution 3/7 (2017), ‘Marine Litter and Microplastics’ unep/ea.3/Res.7. See also unep, ‘Report of the First Meeting of the Ad Hoc Open-Ended Expert Group on Marine Litter and Microplastics’ (2018) unep/aheg/2018/1/6.
unea Resolution 4/6 (2019) (n 11); iisd, ‘Summary of the Fourth Session of the United Nations Environment Assembly: 11–15 March 2019’ (2019) 16 Earth Negotiations Bulletin: unea-4 final 6–7 <
In Nairobi, Kenya, in May 2018; in Geneva, Switzerland, in December 2018; again in Nairobi in March 2019; in Bangkok, Thailand, in December 2019; and virtually in November 2020.
aheg, ‘Chair’s Summary of the Work of the Ad Hoc Open-Ended Expert Group on Marine Litter and Microplastics for Consideration by the United Nations Environment Assembly at Its Fifth Session’ (November 2020) <
See iisd, ‘Ministerial Conference on Marine Litter and Plastic Pollution: 1–2 September 2021’ [2021] Marine Litter & Plastic Pollution Bulletin <
The G7 is a group of the seven major advanced economies: Canada, France, Germany, Italy, Japan, the United Kingdom and the United States, with a representative of the European Union.
G7, ‘G-7 Action Plan to Combat Marine Litter’ (White House Press Release 2015) Annex to the G-7 Leaders’ Declaration <
G7, ‘Ocean Plastics Charter’ (2018) <
G20, ‘Annex to G20 Leaders Declaration: G20 Action Plan on Marine Litter’ (2017) <
G20, ‘G20 Implementation Framework for Actions on Marine Plastic Litter’ (2019) <
For more information on pledges, see ‘Fifth Our Ocean Conference 2018’ <
iisd’s sdg Knowledge Hub, ‘Our Ocean Conference Participants Pledge usd 64 Billion to Protect Oceans’ (29 October 2019) <
For more information on corresponding debates, see Elisabeth Bürgi Bonanomi, Sustainable Development in International Law Making and Trade: International Food Governance and Trade in Agriculture (Edward Elgar Publishing 2015) 9–21; Nico Schrijver, The Evolution of Sustainable Development in International Law: Inception, Meaning and Status (Martinus Nijhoff Publishers 2008) ch 2.
unga Res 38/161 (1983), ‘Process of Preparation of the Environmental Perspective to the Year 2000 and Beyond’ para 8(a).
wced (n 435).
ibid ch 2.
ibid.
See 1992 unfccc art 3; 1992 cbd arts 8 and 10; 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) Preamble and art 2(a). See also 1994 unccd arts 2,4 and 5.
Rio Principles 3–8, 10 and 17.
Sands and Peel (n 447) 206–07, including references; Gabčíkovo-Nagymaros Project (Hungary v Slovakia), Judgment [1997] icj Rep 1997 7 78, para 140.
See Birnie, Boyle and Redgwell (n 488) 125–27; Bürgi Bonanomi (n 536) 189–93; Günther Handl, ‘Environmental Security and Global Change: The Challenge to International Law’ (1990) 1 Yearbook of International Environmental Law 3, 24–28; Vaughan Lowe, ‘Sustainable Development and Unsustainable Arguments’ in Alan Boyle and David Freestone (eds), International Law and Sustainable Development: Past Achievements and Future Challenges (Oxford University Press 1999) 31–37; Schrijver, Evolution of Sustainable Development (n 536) 219–27; Marie-Claire Cordonier Segger and Ashfaq Khalfan, Sustainable Development Law: Principles, Practices and Prospects (Oxford University Press 2004), forword by Judge Christopher G. Weeramantry; Christina Voigt, Sustainable Development as a Principle of International Law: Resolving Conflicts between Climate Measures and WTO Law (Martinus Nijhoff Publishers 2009) 160–77. cf Gabčíkovo-Nagymaros Project (Hungary v Slovakia), Separate Opinion of Vice-President Weeramantry [1997] icj Rep 1997 88; Pulp Mills on the River Uruguay (Argentina v Uruguay), Judgment [2010] icj Rep 2010 14 48 and 74–75 paras 75–76 and 177, respectively.
‘ila New Delhi Declaration of Principles of International Law Relating to Sustainable Development’ 2 International Environmental Agreements 209 (ila Principles on Sustainable Development). See also csd, ‘Report of the Expert Group Meeting on Identification of Principles of International Law for Sustainable Development’ (1996) Prepared by the Division for Sustainable Development for the csd 4th session; Sumudu A Atapattu, Emerging Principles of International Environmental Law (Transnational Publishers 2006) 93–126; Birnie, Boyle and Redgwell (n 488) 116; Cordonier Segger and Khalfan (n 544) ch 2; Schrijver, Evolution of Sustainable Development (n 536) ch 5.
Rio Principles 7 and 8; ila Principles 1, 3 and 4.
Rio Principle 4; ila Principle 7. See Gabčíkovo-Nagymaros (n 543) 78 para 140; The Iron Rhine Arbitration (Belgium v the Netherlands) [2005] 27 UN Rep Int’l Arb Awards 35 66 para 59; Pulp Mills on the River Uruguay (Argentina v Uruguay), Provisional Measures, Order of 13 July 2006 [2006] icj Rep 2006 113 133 para 80; Pulp Mills Judgment (n 544) 48 para 76.
Rio Principle 3; ila Principle 2.
Stockholm Principle 1; Rio Principles 3, 5 and 6; ila Principles 1, 2, 3 and 7.
On intergenerational equity, see, in general, Edith Brown Weiss, In Fairness to Future Generations: International Law, Common Patrimony, and Intergenerational Equity (Transnational Pub/United Nations University 1989). See also Nuclear Tests case (New Zealand v France) Dissenting opinion of Judge Weeramantry icj Rep 1995 317 341.
Handl, ‘Environmental Security’ (n 544) 24–25.
Rio Principles 10 and 17; ila Principles 5 and 6. See Birnie, Boyle and Redgwell (n 488) 116; Boyle and Freestone (n 447) 15–16.
Katja Gehne, Nachhaltige Entwicklung als Rechtsprinzip: normativer Aussagegehalt, rechtstheoretische Einordnung, Funktionen im Recht (Mohr Siebeck 2011) 349–50. See also Atapattu (n 545) 93. cf ila Principles 5 and 6.
Birnie, Boyle and Redgwell (n 488) 126.
Bürgi Bonanomi (n 536), Forword by Thomas Cottier. See also Birnie, Boyle and Redgwell (n 488) 127; Handl, ‘Environmental Security’ (n 544) 27; Lowe (n 544) 31–37; Reinhard Stockmann, ‘Understanding Sustainability Evaluation and Its Contributions to Policy-Making’ in Anneke von Raggamby and Frieder Rubik (eds), Sustainable development, evaluation and policy making: theory, practise and quality assurance (Edward Elgar 2012) 3–20.
From a global perspective, the principle raises the question of whether and to what extent developed countries bear a responsibility towards developing countries ‘in the international pursuit of sustainable development in view of the pressures their societies place on the global environment’: Rio Principle 7. Many states, however, do not consider the principle to be applicable to inter-state relations and the responsibilities of states towards each other, even if they support the principle’s applicability at a national level: see Sands and Peel (n 447) 229.
oecd, Extended Producer Responsibility: A Guidance Manual for Governments (oecd Publishing 2001) 21; The Polluter Pays Principle: Definition, Analysis, Implementation (oecd Publishing 2008) 5.
According to Birnie et al., ‘Principle 16 simply lacks the normative character of a rule of law’: Birnie, Boyle and Redgwell (n 488) 322. cf The Rhine Chlorides Arbitration Concerning the Auditing of Accounts (Netherlands–France) Award pca 2004 para 103.
Eg Protocol for the Protection of the Mediterranean Sea against Pollution from Land-Based Sources and Activities (1996 Syracuse Protocol) (originally adopted in 1980 in Athens, amended on 7 March 1996, entered into force on 11 May 2008); International Convention on Oil Pollution Preparedness, Response and Co-operation (1990 oprc) (adopted on 30 November 1990, entered into force on 13 May 1995) 1891 unts 51, 30 ilm 735 (1990); Protocol on Preparedness, Response and Co-operation to Pollution Incidents by Hazardous and Noxious Substances (2000 oprc-hns Protocol) (adopted on 15 March 2000, entered into force on 14 June 2007). In some treaties, the polluter pays principle is referred to as a ‘general principle of international environmental law’.
Convention for the Protection of the Marine Environment of the North-East Atlantic (1992 ospar Convention) (adopted on 22 September 1992, entered into force on 25 March 1998, text last updated on 18 May 2006) 32 2354 unts 67, ilm 1069 (1993) art 2.2(b); Convention on the Protection and Use of Transboundary Watercourses and International Lakes (1992 unece Water Convention) (adopted on 17 March 1992, entered into force on 6 October 1996) 1936 unts 269, 31 ilm 1312 (1992) art 2.5(b); Convention on the Protection of the Marine Environment of the Baltic Sea Area (1992 Helsinki Convention) (adopted in 1992, entered into force on 17 January 2000) art 2(5); Convention for the Protection of the Mediterranean Sea against Pollution (1995 Barcelona Convention) (opened for signature on 16 February 1976, entered into force on 12 February 1978, amended on 10 June 1995, amended version entered into force on 9 July 2004) 1102 unts 44, 15 ilm 290 (1976) art 4(3)(a); Protocol to the 1972 London Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (1996 London Protocol) (adopted on 7 November 1996, entered into force on 24 March 2006) 36 ilm 1 (1997) art 3(2).
oecd, ‘Recommendation of the Council on Guiding Principles Concerning International Economic Aspects of Environmental Policies’ (1972) C(72)128. See also oecd, ‘Recommendation of the Council on the Implementation of the Polluter-Pays Principle’ (1974) C(74)223; oecd, ‘Recommendation of the Council Concerning the Application of the Polluter-Pays Principle to Accidental Pollution’ (1989) C(89)88.
Accordingly, environmental costs that are caused by the operation of a facility are to be charged on the operator to the extent that the operator is considered ‘the polluter’.
Sadeleer (n 447) 21.
The principle refers to an ‘acceptable state’ of the environment. What is acceptable corresponds to a collective choice and decisions by public authorities. Zero pollution and, accordingly, full cost internalization, is not necessarily envisaged. Costs have to be internalized to the level at which the advantage of a further reduction in pollution is perceived as smaller than the social costs related to additional pollution regulation and control. Internalization beyond this level is optional and does not fall under the polluter pays principle within the oecd meaning: see oecd, The Polluter Pays Principle (n 557) 6 and 15.
oecd, Extended Producer Responsibility (n 557) 9.
oecd, The Polluter Pays Principle (n 557) 6–7.
In the commentaries to its 2006 Draft Principles on the Allocation of Loss, the International Law Commission (ilc) held that the polluter pays principle forms an essential component ‘in underpinning the present draft principles to ensure that victims that suffer harm as a result of an incident involving a hazardous activity are able to obtain prompt and adequate compensation’: ilc, ‘Draft Principles on the Allocation of Loss in the Case of Transboundary Harm Arising Out of Hazardous Activities’, Report of the ILC 60th session (UN doc A/61/10 ch ve1 2006) Commentary to the Preamble at 115 para 2.
See Sadeleer (n 447) 51.
See ibid 56. The same is true if liability is based on negligence: if negligence cannot be proved, or if the environmental damage caused was ‘neither reasonably foreseeable nor avoidable’, there will be no compensation by the polluter. As a result, the costs will be borne by the victims or the taxpayer: see Birnie, Boyle and Redgwell (n 488) 324.
See Sadeleer (n 447) 53.
In a coherent policy framework aiming at more sustainable production and consumption patterns, the polluter pays principle may well be complemented by a user pays principle – a notion that has emerged more recently and has been referred to in a number of oecd decisions: see ibid 42.
unga Res. 66/288 (2012), annex (n 512) para 158; unga Res 69/245 (2014), ‘Oceans and the Law of the Sea’ 2. See also Agenda 21 (n 450) resolution 1, annex ii, para 17.1. According to Agenda 21, unclos ‘provides the international basis upon which to pursue the protection and sustainable development of the marine and coastal environment and its resources’.
As of February 2022, unclos has been ratified by the EU and 167 countries, excluding Cambodia; Colombia; El Salvador; Eritrea; Iran; Israel; Libya; North Korea; Peru; Syria; Turkey; United Arab Emirates; United States and Venezuela: see United Nations, ‘United Nations Convention on the Law of the Sea’ (UN Treaty Collection, 2021) <
See Preamble to the annual unga Resolution on oceans and the law of the sea: unga Res 63/111 (2008); Res 64/71 (2009); Res 65/37 (2010); Res 66/231 (2011); Res 67/78 (2012); Res 68/70 (2013); Res 69/245 (2014); Res 70/235 (2015); Res 71/257 (2016); Res 72/73 (2017).
See remarks by Tommy TB Koh, President of the Third United Nations Conference on the Law of the Sea, at its final session in Montenegro Bay, Jamaica, 11 December 1982, reprinted in The Law of the Sea: Official Text of the United Nations Convention on the Law of the Sea (United Nations 1983) xxxiii; Shirley V Scott, ‘The LOS Convention as a Constitutional Regime for the Oceans’ in Alex G Oude Elferink (ed), Stability And Change in the Law of the Sea: The Role of the LOS Convention (Martinus Nijhoff Publishers 2005) 12.
Respective rules are, thus, also binding on non-member states. On the customary nature of rules related to the protection of the marine environment, see Birnie, Boyle and Redgwell (n 488) 387; Alan E Boyle, ‘Land-Based Sources of Marine Pollution: Current Legal Regime’ (1992) 16 Marine Policy 20, 25; Sands and Peel (n 447) 350. For a list of unclos provisions that have been recognized to reflect customary law, see, in general, J Ashley Roach, ‘Today’s Customary International Law of the Sea’ (2014) 45 Ocean Development & International Law 239.
See Tanaka, International Law of the Sea (n 360) 4 and 37.
Growing demand for maritime resources, both living and non-living, gradually expanded the scope of the law of the sea to questions related to resource allocation and control. In the context of major geopolitical rearrangements that came along with the decolonialization process, the struggle among countries for newly accessible resources, including energy resources and manganese nodules from the seafloor, had significant impacts on the development of the law of the sea. On the one hand, it favoured the enclosure of the seas. The enclosure movement is also known as the territorialisation of the seas and basically refers to the extension of the territorial sea of coastal states to 12 nautical miles, as well as to the development of the regimes of the continental shelf and the Exclusive Economic Zone, and their consolidation in unclos: see Thomas Cottier, Equitable Principles of Maritime Boundary Delimitation: The Quest for Distributive Justice in International Law (Cambridge University Press 2015) 46–47. As a result of the enclosure movement, there has been a substantial reduction in the area of the high seas, as the admissible limits of coastal state jurisdiction have been ‘gradually extended away from the coast’: David Anderson, ‘Freedoms of the High Seas in the Modern Law of the Sea’ in David Freestone, Richard Barnes and David Ong (eds), The Law of the Sea: Progress and Prospects (Oxford University Press 2006) 328. cf Bernard H Oxman, ‘The Territorial Temptation: A Siren Song at Sea’ (2006) 100 The American Journal of International Law 830. The enclosure movement therefore represents a shift of balance between two of the main governing principles in the law of the sea – the principles of the freedom of the high seas and of sovereignty – for the benefit of the latter. On the other hand, the struggle for resources strongly influenced the development of an unprecedented regime for the deep seabed, which is governed by the principle of the common heritage of mankind. For more information on the evolution of the law of the sea, its governing principles and codification efforts, see Churchill and Lowe (n 430) 71–79 and 204–22; Cottier, Equitable Principles of Maritime Boundary Delimitation 45–66; Rothwell and Stephens (n 364) 2–4; Nico Schrijver, Sovereignty over Natural Resources: Balancing Rights and Duties (Cambridge University Press 1997) 203–4 and 215–29; Tanaka, International Law of the Sea (n 360) 17–21; Davor Vidas, ‘Responsibility for the Seas’ in Davor Vidas (ed), Law, Technology and Science for Oceans in Globalisation: IUU Fishing, Oil Pollution, Bioprospecting, Outer Continental Shelf (Brill 2010) 17–24.
Under the Convention on the High Seas (entered into force on 30 September 1962) 450 unts 11 arts 24 and 25, states were required to regulate oil pollution from ships, pipelines and seabed operations and to take measures in order to prevent nuclear pollution. From the late 1960s, a number of conventions were concluded to regulate further issues, including pollution from vessels, dumping at sea, maritime casualties and civil liability for pollution from vessels: International Convention for the Prevention of Pollution of the Sea by Oil (1954 oilpol) (opened for signature on 12 May 1954, entered into force on 26 July 1958) 327 unts 3; 1973/78 marpol; 1972 London Dumping Convention; International Convention Relating to Intervention on the High Seas in Cases of Oil Pollution Casualties (1969 intervention) (adopted on 29 November 1969, entered into force on 6 May 1975) and Protocol Relating to Intervention on the High Seas in Cases of Pollution by Substances other than Oil (adopted on 2 November 1973); International Convention on Civil Liability for Oil Pollution Damage (1969/92 clc) (adopted on 29 November 1969, entered into force on 19 June 1975), as replaced by 1992 Protocol (adopted on 27 November 1992, entered into force on 30 May 1996). See Alan E Boyle, ‘Marine Pollution under the Law of the Sea Convention’ (1985) 79 The American Journal of International Law 347, 347–48.
See Boyle, ‘Marine Pollution under the Law of the Sea Convention’ (n 581) 347; Birnie, Boyle and Redgwell (n 488) 387; Center for Oceans Law and Policy, University of Virginia, ‘PART XII – Protection and Preservation of the Marine Environment (IV)’, United Nations Convention on the Law of the Sea (Brill Online 2016) 3 <
Emphasis added.
In an order concerning the Southern Bluefin Tuna Cases, the International Tribunal for the Law of the Sea (itlos) held that ‘the conservation of the living resources of the sea is an element in the protection and preservation of the marine environment’: Southern Bluefin Tuna Cases (New Zealand v Japan; Australia v Japan), Provisional Measures [1999] itlos cases Nos. 3 and 4 para 70; Request for an Advisory Opinion Submitted by the Sub-regional Fisheries Commission, Advisory Opinion [2015] itlos case No. 21 34 para 120; Chagos Marine Protected Area Arbitration (Mauritius v United Kingdom) [2015] pca (Arbitral Tribunal 2015) 211 para 538; South China Sea Arbitration (the Philippines v China) [2016] Arbitral Tribunal 2016 Case No 2013-19, pca 380–84 paras 956–66. For more information on the regime on the conservation of marine living resources and marine biodiversity, including under unclos, see Birnie, Boyle and Redgwell (n 488) ch 13; Dupuy and Viñuales (n 582) 162–67; Rothwell and Stephens (n 364) 315–45; Sands and Peel (n 447) 396–448; Tanaka, International Law of the Sea (n 360) 334–58. See also related contributions in David Freestone, Richard Barnes and David Ong (eds), The Law of the Sea: Progress and Prospects (Oxford University Press 2006) 210–307; Davor Vidas (ed), Law, Technology and Science for Oceans in Globalisation: IUU Fishing, Oil Pollution, Bioprospecting, Outer Continental Shelf (Brill 2010) 77–210; Davor Vidas and Peter Johan Schei (eds), The World Ocean in Globalisation: Climate Change, Sustainable Fisheries, Biodiversity, Shipping, Regional Issues (Brill 2011) Part iii.
unclos art 192. See Myron H Nordquist, Shabtai Rosenne and Alexander Yankov (eds), United Nations Convention on the Law of the Sea 1982: A Commentary, Vol IV: Articles 192 to 278 (Center for Oceans Law and Policy and Kluwer Law International 2002) 36.
unclos arts 194 and 207–12.
The obligations will be discussed in more detail in subsection ii below.
See Birnie, Boyle and Redgwell (n 488) 383; Boyle, ‘Marine Pollution under the Law of the Sea Convention’ (n 581) 347–51; Tanaka, International Law of the Sea (n 360) 268.
1992 cbd.
A major exception to the principle of freedom of the high seas refers to the deep seabed (Area) and its mineral resources in particular, which are governed by the principle of the common heritage of mankind: see Section i.2) below. For more information on the different maritime zones, see Churchill and Lowe (n 430) ch 2–12; Cottier, Equitable Principles of Maritime Boundary Delimitation (n 580) Part i; AG Oude Elferink and EJ Molenaar (eds), The International Legal Regime of Areas beyond National Jurisdiction: Current and Future Developments (Martinus Nijhoff Publishers 2010); Myron H Nordquist, Satya N Nandan and Shabtai Rosenne, United Nations Convention on the Law of the Sea 1982: A Commentary, Vol II: Articles 1 to 85 (Center for Oceans Law and Policy and Kluwer Law International 2002); United Nations Convention on the Law of the Sea 1982: A Commentary, Vol III: Articles 86 to 132 (Center for Oceans Law and Policy and Kluwer Law International 2002); United Nations Convention on the Law of the Sea 1982: A Commentary, Vol VI: Articles 133 to 191 (Center for Oceans Law and Policy and Kluwer Law International 1985); Daniel P O’Connell, The International Law of the Sea, vol 1 (Ivan Anthony Shearer ed, Clarendon Press 1983); Daniel P O’Connell, The International Law of the Sea, vol 2 (Ivan Anthony Shearer ed, Clarendon Press 1984); Rothwell and Stephens (n 364) ch 2–9; Tanaka (n 360) Part i.
See Section 2.1.B.ii below.
Two recent examples of cases in which states brought claims against other states for acts that resulted in negative effects in common spaces or domestic areas of the polluting state include the Whaling case and the South China Sea case: Whaling in the Antarctic (Australia v Japan: New Zealand intervening), Judgment [2014] icj Rep 2014 226; South China Sea Arbitration (n 584). See discussion in subsection 2.1.B.iii below.
1982 unclos arts 8–11. The baseline usually is the low-water line along the coast (normal baseline): ibid art 5. Alternative methods for baseline determination may be applied under special geographical conditions, including for straights, bays and archipelagic states.
1982 unclos art 2(1).
Tanaka, International Law of the Sea (n 360) 6.
1982 unclos art 17. Innocent passage excludes, for instance, military, fishing or research activities: ibid art 19(2).
1982 unclos art 3.
ibid art 23.
ibid art 55.
ibid art 57.
ibid art 56(1)(a).
ibid art 56(1)(b).
ibid arts 61–68 and 73. See Fisheries Advisory Opinion (n 584).
Tanaka, International Law of the Sea (n 360) 130–31.
1982 unclos art 58(1). Freedoms applying to the eez include the freedoms of navigation, overflight and the lying of submarine cables and pipelines.
The continental-shelf doctrine harks back to ‘the long range world-wide need for new sources of petroleum and other minerals’ and the corresponding proclamation of United States President Harry S. Truman of 28 September 1945, in which he declared the outer continental shelf to be under US jurisdiction and control: Harry S Truman, ‘Presidential Proclamation No. 2667 – Policy of the United States With Respect to the Natural Resources of the Subsoil and Sea Bed of the Continental Shelf’ (1945) 10 Fed. Reg. 12,303. Many countries followed the example of the United States and claimed exclusive economic jurisdiction over the natural resources of the continental shelf or, in the absence of a continental shelf, of the seabed up to 200 nautical miles from the coast. unclos Part vi reflects this doctrine.
1982 unclos art 76(1).
The seaward limits of the continental shelves exceeding 200 nautical miles are currently being set by the coastal states according to specifically defined criteria: ibid art 76(4–7). The process is accompanied and monitored by the Commission on the Limits of the Continental Shelf, a body set up under Annex ii of the convention on the basis of equitable geographical representation (see art 2(1) of unclos Annex ii).
ibid art 77(1). Specific activities falling under exclusive jurisdiction of the coastal state include drilling operations for all purposes and the construction, operation and use of artificial islands, installations and structures on the continental shelf: ibid arts 80–81. Natural resources of the continental shelf include mineral and other non-living resources of the seabed and its subsoil. They also include sedentary species that, ‘at the harvestable stage, either are immobile on or under the seabed or are unable to move except in constant physical contact with the seabed’: ibid art 77(4). Such species include oysters, clams and abalone, and, arguably, also crabs and lobsters: see Churchill and Lowe (n 430) 151–52. Non-natural resources, such as wrecks, are, though, not covered. When exploiting non-living resources of the outer continental shelf (beyond 200 nautical miles from the baseline), coastal states have to make payments or contributions in kind to the International Seabed Authority (isa). Payments are made according to a specific formula and equitably distributed among the parties, taking into account the interests and needs of developing and disadvantaged states: 1982 unclos art 82.
1982 unclos art 77(2) and, with regard to marine scientific research, art 246(2).
ibid art 78(2). In particular, other states are entitled to lay submarine cables and pipelines on the continental shelf. The delineation of the course for the laying of such pipelines is subject to the consent of the coastal state. Also, the coastal state may establish conditions for cables or pipelines entering its territory or territorial sea: ibid art 79(1–4).
See Tanaka, International Law of the Sea (n 360) 6–7.
Part vi of the convention, which sets out the regime on the continental shelf, is silent about the matter of environmental protection. Within the eez, the coastal states’ jurisdiction in this respect comprises the seafloor and its subsoil. In the outer continental shelf, coastal states have jurisdiction with regard to the protection of the marine environment to the extent that it forms part of their exploration and exploitation of the natural resources and does not unduly restrict the freedoms of other states.
In an advisory opinion that itlos adopted at the request of the Sub-Regional Fisheries Commission, the tribunal held that ‘laws and regulations adopted by the coastal State in conformity with the provisions of the Convention for the purpose of conserving the living resources and protecting and preserving the marine environment within its exclusive economic zone, constitute part of the legal order for the seas and oceans established by the Convention’. It also held that in the eez, the primary responsibility for taking such measures rests with the coastal state: Fisheries Advisory Opinion (n 584) 30–31 paras 102 and 106. See also ibid 34–35 para 120.
1982 unclos arts 86 and 87.
ibid art 136.
ibid art 88.
ibid art 89.
ibid art 87(1).
ibid art 87(1)(a–f).
Churchill and Lowe (n 430) 78; Oxman (n 580) 837; Vidas, ‘Responsibility for the Seas’ (n 580) 27.
Such obligations may be included in unclos itself or other treaties such as the UN Fish Stock Agreement, which, for instance, restricts the freedom to fish for the states parties to it: United Nations Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (adopted on 4 August 1995, entered into force on 11 December 2001) 2167 unts 88, 34 ilm 1542 (1995).
1982 unclos art 87(2).
ibid art 92(1); The M/V ‘Saiga’ Case (Saint Vincent and the Grenadines v Guinea) [1999] itlos case No. 2 para 106.
For more information on the principle of the exclusive jurisdiction of the flag state, see Tanaka, International Law of the Sea (n 360) 157–77.
See 1982 unclos arts 211(2) and 217(1). See also 1973/78 marpol.
1982 unclos art 136.
ibid art 133.
ibid art 141. See also art 138.
Hence, the Area cannot be considered a res nullius over which states can claim ownership. Claims of sovereignty or sovereign rights over parts of the Area are explicitly excluded: ibid art 137(1).
ibid art 140(1).
ibid arts 137(2) and 153(1). isa (referred to in the treaty as ‘the Authority’) was established by the adoption of unclos art 156(1) and has its seat in Jamaica (art 156(4)). All parties to unclos are member to isa (art 156(2)) and its supreme organ, the Assembly [regulated by arts 159–60 and Annex Section 3 of the Agreement Relating to the Implementation of Part xi of the United Nations Convention on the Law of the Sea of 10 December 1982 (Implementing Agreement) (adopted on 28 July 1994, entered into force on 28 July 1996) 33 ilm 1309 (1994)]. Further organs include the Council (unclos arts 161–65; Implementing Agreement Annex Section 3) serving as the executive organ of isa; the Secretariat (arts 166–69); and the Enterprise, the operative arm of the organization (art 170; Implementing Agreement Annex Section 2). isa has legislative and enforcement jurisdiction with respect to the exploration and exploitation of mineral resources (‘activities’) in the Area (art 17(1) of unclos Annex iii and unclos art 153(5)).
1982 unclos art 140(2). In the context of increasing self-determination of the global south, equity concerns and a call for distributive justice have, in fact, been a driving factor in the development of the regime. In the run up to the negotiations of unclos, developing countries feared to lose out against technologically advanced states in the accession and exploitation of deep-seabed resources: see Churchill and Lowe (n 430) 223–26; Tullio Scovazzi, ‘The Seabed beyond the Limits of National Jurisdiction: General and Institutional Aspects’ in AG Oude Elferink and EJ Molenaar (eds), The International Legal Regime of Areas beyond National Jurisdiction: Current and Future Developments (Koninklijke Brill NV 2010) 44; Tanaka, International Law of the Sea (n 360) 179–80. In a speech before the UN General Assembly in 1967, the Maltese Ambassador Arvid Pardo thus suggested the deep seabed to be defined as the common heritage of mankind that ‘should be used and exploited for peaceful purposes and for the exclusive benefit of mankind as a whole’: Speech by Arvid Pardo at the UN General Assembly, of 1st November 1967, as contained in unga, ‘Twenty-Second Session Official Records: First Committee, 1515th Meeting’ (1967) UN Doc a/c.1/pv.1515; and unga, ‘Twenty-Second Session Official Records: First Committee, 1516th Meeting’ (1967) UN Doc a/c.1/pv.1516 (1967). Quotation at ibid para 13. See also Cottier, Equitable Principles of Maritime Boundary Delimitation (n 580) 45–66; Schrijver, Sovereignty over Natural Resources (n 580) 215–29; Scovazzi, ‘The Seabed beyond the Limits of National Jurisdiction: General and Institutional Aspects’ 44. Pardo’s speech led to a moratorium of resource exploitation in the deep seabed in 1969 and to the adoption of a ‘Declaration of Principles’ by the General Assembly in 1970, which consolidated Pardo’s claim: unga Res 2574 (xxiv) (1969), ‘Question of the Reservation Exclusively for Peaceful Purposes of the Sea-Bed and the Ocean Floor, and the Subsoil Thereof, Underlying the High Seas beyond the Limits of Present National Jurisdiction, and the Use of Their Resources in the Interests of Mankind’; unga Res 2749 (xxv) (1970), ‘Declaration of Principles Governing the Sea-Bed and the Ocean Floor, and the Subsoil Thereof, beyond the Limits of National Jurisdiction’ para 1. In spite of continuing disagreement, especially between the Group of 77 (G77) and developed states, over the exact nature and design of the regime, it was embedded in unclos Part xi: Churchill and Lowe (n 430) 228–29. On the role of the G77 during unclos negotiations, see Rothwell and Stephens (n 364) 12–14.
unclos art 145. In this competence, the isa adopted regulations on prospecting and exploration for polymetallic nodules and sulphides in the Area. The UN General Assembly repeatedly emphasized the importance of the isa’s on-going work in this field.
See Tanaka, International Law of the Sea (n 360) 191. The original text provided for a rather interventionist regime with elements of supranational control and administration, and differential treatment for developing countries. Yet, even before the convention entered into force in 1994, the application of the concept of common heritage of mankind was restricted. Several aspects, mainly opposed by industrialized countries, were amended or eliminated by an implementing agreement adopted by the General Assembly on 28 July 1994: 1994 Agreement on the Implementation of unclos Part xi. Eliminated elements particularly include obligatory technology transfer, financial obligations of states and miners, as well as production limitation from seabed resources that ought to benefit developing country economies dependant on the export of land-mined minerals. Amended elements notably include decision-making procedures of the isa Council and Assembly with a shift towards a consensus requirement; budgetary issues, and rules regarding compensation and economic assistance of developing countries. Only with the corresponding adjustments – in particular towards a more market-based approach – unlcos became universally acceptable. For more information, see Churchill and Lowe (n 430) 229–53; Cottier, Equitable Principles of Maritime Boundary Delimitation (n 580) 54; Scovazzi, ‘The Seabed beyond the Limits of National Jurisdiction: General and Institutional Aspects’ (n 633) 45–48; Tanaka, ‘Regulation of Land-Based Marine Pollution’ (n 363) 186–92. As one of the major opponents of unclos Part xi in its original form, the United States actively participated in the negotiations which led to the adoption of the 1994 Implementing Agreement. Yet, it has ratified neither the convention nor the implementing agreement, although it recognizes unclos (in most of its parts) as a codification of customary international law. For a historical summary of the United States’ main concerns with regard to the regulation of the deep seabed and its role in the set-up of the 1994 Implementing Agreement, see Charney, ‘The Marine Environment and unclos’ (n 582) 880, in particular fn 3.
Schrijver, Sovereignty over Natural Resources (n 580) 218–20.
In the high seas, conservation of living resources is to be achieved by international cooperation: 1982 unclos art 118. This is also true for the determination of the allowable catch of living resources in the high seas (art 119). For the currently 90 parties of the Fish Stocks Agreement of 4 August 1995, the respective provisions in unclos are to be read in conjunction with those of the agreement. In order to provide effective mechanisms for compliance and enforcement on the high seas and to ensure coherence in the management of straddling or highly migratory fish stocks, the Fish Stocks Agreement establishes detailed minimum international standards for the conservation and management of these species. With the exception of arts 5–7, the agreement applies exclusively to areas beyond national jurisdiction.
See Fisheries Advisory Opinion (n 584) 34–35 para 120.
See 1982 unclos art 194(2).
Stockholm Principle 7 calls on 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’: 1972 Stockholm Declaration.
E.g. United Nations, ‘Report of the Intergovernmental Working Group on Marine Pollution on Its Second Session’ (1971) UN doc a/conf.48/iwgmp.ii/5 3 Principle 1: ‘Every state has a duty to protect and preserve the marine environment and, in particular, to prevent pollution that may affect areas where an internationally shared resource is located’. See also Nordquist, Rosenne and Yankov (n 585) para 192.3.
1982 unclos art 1(1)(4).
See gesamp, ‘Report of the First Session’ (1969) UN Doc gesamp i/11 5; United Nations, ‘Report of the United Nations Conference on the Human Environment’ (1972) UN Doc a/conf.48/14/Rev. 1 (1972) Annex iii, 73; Hassan (n 364) 12–15; E Pontavice, ‘Pollution’ in Leo J Bouchez and L Kaijen (eds), The Future of the Law of the Sea: Proceedings of the Symposium on the Future of the Sea organized at Den Helder by the Royal Netherlands Naval College and the International Law Institute of Utrecht State University 26 and 27 June 1972 (Martinus Nijhoff 1973) 104; Meng Qing-Nan, Land Based Marine Pollution: International Law Development (Graham & Trotman/Martinus Nijhoff 1987) 3–5. For a critical review of the evolution of the definition and its inclusion and adoption in unclos, see, in general, M Tomczak, ‘Defining Marine Pollution: A Comparison of Definitions Used by International Conventions’ (1984) 8 Marine Policy 311.
See, for instance, gesamp, ‘Protecting the Oceans from Land-Based Activities: Land-Based Sources and Activities Affecting the Quality and Uses of the Marine, Coastal and Associated Freshwater Environment’ (unep 2001) Reports and Studies No 71 at 9, 16 and 20; Michael Hardy, ‘International Control of Marine Pollution’ (1971) 11 Nat. Resources J. 296, 303–05; unep and gpa (n 492). See also Churchill and Lowe (n 430) 331; Hassan (n 364) 23–34.
See imo, ‘Guidelines for the Reduction of Underwater Noise from Commercial Shipping to Address Adverse Impacts on Marine Life’ (2014) mepc.1/Circ.833; unga Res 71/257 (2016), ‘Oceans and the Law of the Sea’ para 266. On the impacts of anthropogenic noise on whales and other cetaceans see LS Weilgart, ‘The Impacts of Anthropogenic Ocean Noise on Cetaceans and Implications for Management’ (2007) 85 Canadian Journal of Zoology 1091.
See South China Sea Arbitration (n 584) 382 para 960.
cf Southern Bluefin Tuna Cases (n 584) paras 77–79; Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area (Advisory Opinion) [2011] itlos (Seabed Disputes Chamber) case No. 17 40 paras 131–32. See also Qing-Nan (n 643) 5; Tanaka, International Law of the Sea (n 360) 269.
See 2.1.B.ii.3)b) and c) below.
Indirect introduction into the marine environment includes any loss of control of plastic wastes allowing them to enter the environment and to eventually end up in the sea. Introduction into the marine environment may therefore refer to the use of microbeads in showers in case sewage treatment plants cannot filter them out, or to the dumping of plastics on land or at sea, unsustainable landfill sites or the introduction of plastics into rivers of upstream states.
See unep and gpa (n 492) 26.
See South China Sea Arbitration (n 584) 373 para 941.
Responsibilities of States in the Area (n 647).
cf art 31(3)(c) of the Vienna Convention on the Law of Treaties (1969 vclt) (adopted on 23 May 1969, entered into force on 27 January 1980) 1155 unts 331, 8 ilm 679 (1969). See also the comments by the ilc in ‘Fragmentation of International Law: Difficulties Arising From the Diversification and Expansion of International Law (Fragmentation Report)’ (Study Group of the International Law Commission 2006) a/cn.4/l.682 212 para 423.
Chagos Marine Protected Area Arbitration (n 584).
South China Sea Arbitration (n 584).
In the South China Sea Arbitration, the tribunal noted that ‘the environmental obligations in Part xii apply to States irrespective of where the alleged harmful activities took place’: ibid 370 para 927. The tribunal also held that ‘the obligations in Part xii apply to all States with respect to the marine environment in all maritime areas, both inside the national jurisdiction of States and beyond it’ and that ‘questions of sovereignty are irrelevant to the application of Part xii of the Convention’: ibid 373 para 940. See also Fisheries Advisory Opinion (n 584) 35 para 120.
Nordquist, Rosenne and Yankov (n 585) para 192.8 and 194.10(c). See also Birnie, Boyle and Redgwell (n 488) 387; Dupuy and Viñuales (n 582) 99.
unclos art 193 reads as follows: ‘States have the sovereign right to exploit their natural resources pursuant to their environmental policies and in accordance with their duty to protect and preserve the marine environment’.
With respect to the overarching goal of sustainable development, Rio Principle 4 explicitly expresses a state duty to reconcile economic development with environmental protection: ‘In order to achieve sustainable development, environmental protection shall constitute an integral part of the development process and cannot be considered in isolation from it’. The International Court of Justice (icj) confirmed the principle: Gabčíkovo-Nagymaros (n 543) 78 para 140; Iron Rhine Arbitration (n 547) 66–67 para 59; Pulp Mills, Provisional Measures (n 547) 133 para 80. In return, interests related to environmental protection cannot generally invalidate the right to economic development. On sustainable development, see Section 2.1.A.ii.1) above.
The interlinkage of rights coupled to territorial sovereignty and the sovereignty over natural resources on the one hand and of corresponding responsibilities on the other hand has long been established in international law. In a territorial dispute between the Netherlands and the United States in 1928, the arbitral tribunal held that sovereignty implies as a corollary duty ‘the obligation to protect within the territory the rights of other States’: Island of Palmas case (Netherlands v USA) [1928] 2 UN Rep Int’l Arb Awards 829 839. The reasoning is, in fact, inherent to the principle of sovereignty itself and the principle of sovereign equality of states which was later expressed in art 2.1 of the UN Charter. The icj came to a similar conclusion in its Barcelona Traction case. In the judgment, known for its reference to erga omnes obligations of states (that is, obligations of a state towards the international community), the court held that ‘[r]esponsibility is the necessary corollary of a right’: Barcelona Traction, Light and Power Company, Limited (Belgium v Spain) Judgment [1970] icj Rep 1970 3 33 para 36. The same must be true with respect to sovereignty over natural resources: it entails both rights and duties, which form the legal room to manoeuvre with respect to a state’s resource management. This applies even more so to shared resources. In fact, with respect to marine living resources, it is usually difficult to determine into which jurisdiction they fall. See Franz Xaver Perrez, Cooperative Sovereignty: From Independence to Interdependence in the Structure of International Environmental Law (Kluwer Law International 2000) ch 6; Sands and Peel (n 447) 193. cf Schrijver, Sovereignty over Natural Resources (n 580) 391–92.
See 1982 unclos art 1(4). See also Section 2.1.B.ii.1) above.
Whether or not transboundary pollution is significant depends on the specific circumstances of a case. According to the ilc, significant harm leads to ‘a real detrimental effect’ that ‘must be susceptible of being measured by factual and objective standards’: ilc, ‘Draft Articles on Prevention of Transboundary Harm from Hazardous Activities’, Report of the International Law Commission 53th session (UN Doc A/56/10 ch ve1 2001) article 2 and commentary para 4 at 388. Criteria for determining the threshold of significant harm include the likelihood and severity of harmful effects. Transboundary effects involving serious irreversible impacts on the environment or on human health ‘are likely to be a priori deemed significantly harmful’: Günther Handl, ‘Transboundary Impacts’ in Daniel Bodansky, Jutta Brunnée and Ellen Hey (eds), The Oxford Handbook of International Environmental Law (Oxford University Press 2007) 536.
Handl, ‘Transboundary Impacts’ (n 662) 535–36.
See Birnie, Boyle and Redgwell (n 488) 129; Sadeleer (n 447) 64; Sands and Peel (n 447) 201.
See Jonathan I Charney, ‘Third State Remedies for Environmental Damage to the World’s Common Spaces’ in Fancesco Francioni and Tullio Scovazzi (eds), International Responsibility for Environmental Harm (Graham & Trotman/Martinus Nijhoff 1991) 165–66. See also Section 2.1.B.iii below.
South China Sea Arbitration (n 584) 384 paras 964 and 966, as well as 394 para 983.
ibid 373 para 941 (emphasis added).
Alan E Boyle, ‘Relationship between International Environmental Law and Other Branches of International Law’ in Daniel Bodansky, Jutta Brunnée and Ellen Hey (eds), The Oxford Handbook of International Environmental Law (Oxford University Press 2007) 128. On fragmentation and coherence in international law, see ilc, ‘Fragmentation Report’ (n 653); Joost Pauwelyn, Conflict of Norms in Public International Law: How WTO Law Relates to Other Rules of International Law (Cambridge University Press 2003); Philippe Sands, ‘Sustainable Development: Treaty, Custom, and the Cross-Fertilization of International Law’ in Alan Boyle and David Freestone (eds), International Law and Sustainable Development: Past Achievements and Future Challenges (Oxford University Press 1999); Bruno Simma, ‘Universality of International Law from the Perspective of a Practitioner’ (2009) 20 European Journal of International Law 265.
See, in general, ilc, ‘Fragmentation Report’ (n 653) ch F; Campbell McLachlan, ‘The Principle of Systemic Integration and Article 31(3)(c) of the Vienna Convention’ (2005) 54 International and Comparative Law Quarterly 279.
Arnold Duncan McNair, The Law of Treaties (2nd edn, Clarendon Press 1961) 466, as cited in ilc, ‘Fragmentation Report’ (n 653) 208 para 414. In an award of 1928, the arbitral tribunal nicely held that: ‘Every international convention must be deemed tacitly to refer to general principles of international law for all questions which it does not itself resolve in express terms and in a different way’: Georges Pinson Case (France v United Mexican States) [1928] Arbitral Award 5 riaa 327 422. See also Alan Boyle and Christine Chinkin, The Making of International Law (oup Oxford 2007) 244–46; McLachlan (n 669) 280.
ilc, ‘Fragmentation Report’ (n 653) 211 para 421.
See, for instance, United States – Standards for Reformulated and Conventional Gasoline (US Gasoline) [1996] Appellate Body Report wt/ds2/ab/r 17; European Communities – Measures Concerning Meat and Meat Products (Hormones) (ec Hormones) [1998] Appellate Body Report wt/ds26/ab/r 47–8 paras 123–25; Case Concerning Oil Platforms (Islamic republic of Iran v United States of America), Judgment [2003] icj Rep 2003 161 182 para 41. Some examples of environmental cases will be discussed below.
In an 1971 case, the icj held that treaties are to be ‘interpreted and applied within the framework of the entire legal system prevailing at the time of the interpretation’: Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970), Advirory Opinion [1971] icj Rep 1971 16 31 para 53.
See ilc, ‘Fragmentation Report’ (n 653) 212–13 para 423.
For more information about the issue of inter-temporality, see ilc, ‘Fragmentation Report’ (n 653) 240–43 paras 475–78.
Aegean Sea Continental Shelf, Judgment [1978] icj Rep 1978 3 32 para 77.
In a 1997 ruling, the icj recalled the dynamic character of the science and law related to the protection of the environment: ‘Owing to new scientific insights and to a growing awareness of the risks for mankind […] new norms and standards have been developed […]. Such new norms have to be taken into consideration, and such new standards given proper weight, not only when States contemplate new activities but also when continuing with activities begun in the past’: Gabčíkovo-Nagymaros (n 543) 77–78 para 140. See also the wto Appellate Body’s reference to a number of environmental treaties in its interpretation of the term ‘exhaustible natural resources’: United States – Import Prohibition of Certain Shrimp and Shrimp Products (US Shrimp) [1998] Appellate Body Report wt/ds58/ab/r paras 130–31.
See ilc, ‘Fragmentation Report’ (n 653) 211 para 419.
Pulp Mills Judgment (n 544) 77 para 187 and 79 para 197.
ibid 79 para 197. See also Fisheries Advisory Opinion (n 584) 38 para 131; South China Sea Arbitration (n 584) 375–76 para 944.
Pulp Mills Judgment (n 544) 55–56 para 101 and 78 para 193. See Legality of the Threat or Use of Nuclear Weapons in Armed Conflict, Advisory Opinion [1996] icj Rep 1996 226 242 para 29. See also Iron Rhine Arbitration (n 547) 66–67 para 59. The principle of prevention, which is also reflected in unclos art 194(2), is expressed in Stockholm Principle 21 and Rio Principle 2, and has been repeatedly stressed by the General Assembly: e.g. unga Res 2995 (xxvii) (1972), ‘Co-Operation between States in the Field of the Environment’ para 1; unga Res 3281 (xxix) (1974), ‘Charter of Economic Rights and Duties of States’ art 30. The rule has also been embedded in a number of international environmental treaties, such as in 1992 cbd art 3.
Pulp Mills Judgment (n 544) 83 para 204 (emphasis added). See also Argumentation by New Zealand in Request for an Examination of the Situation in Accordance with Paragraph 63 of the Court’s Judgment of 20 December 1974 in the Nuclear Tests (New Zealand v France) Case [1995] icj Rep 1995 288; Request for an Examination of the Situation, Dissenting Opinion of Judge Weeramantry [1995] icj Rep 1995 312 344–45; Gabčíkovo-Nagymaros (n 543) 77–78 paras 139–41; Gabčíkovo-Nagymaros Project (Hungary v. Slovakia), Separate Opinion of Vice-President Weeramantry (n 544) 111–13. See also Handl, ‘Transboundary Impacts’ (n 662) 541.
Pulp Mills Judgment (n 544) 83 para 204.
ibid 71 para 164.
Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v Nicaragua) and Construction of a Road in Costa Rica Along the San Juan River (Nicaragua v Costa Rica) [2015] icj General List Nos 150 and 152 45 para 104.
ibid 45 para 104.
Responsibilities of States in the Area (n 647) 34 para 110.
ibid 35 para 13.
ibid 44 para 145. See also The MOX Plant Case (Ireland v United Kingdom), Provisional Measures [2001] itlos case No. 10 para 84; Case Concerning Land Reclamation by Singapore in and Around the Straits of Johor (Malaysia v, Singapore), Provisional Measures [2003] itlos case No. 12 para 99; South China Sea Arbitration (n 584) 377 para 948.
The obligation of the State of origin to take preventive or minimization measures is one of due diligence. It is the conduct of the State of origin that will determine whether the State has complied with its obligation under the present articles. […] the State of origin is required […] to exert its best possible efforts to minimize the risk. In this sense it does not guarantee that the harm would not occur:
ilc, ‘2001 ilc Draft Articles on Prevention of Transboundary Harm’ (n 662) 391–92 para 7. See also Alan E Boyle, ‘Codification of International Environmental Law and the International Law Commission: Injurious Consequences Revisited’ in Alan Boyle and David Freestone (eds), International Law and Sustainable Development: Past Achievements and Future Challenges (Oxford University Press 1999) 76; Sadeleer (n 447) 63.
Responsibilities of States in the Area (n 647) 40 para 131. See also Southern Bluefin Tuna Cases (n 584) paras 77–80.
Responsibilities of States in the Area (n 647) 41 para 135. In spite of the high number of references to the precautionary principle or approach in international and regional law, its status and meaning are not undisputed. On the one hand, interpretations vary with regard to the exact meaning of the principle or approach: it is, for instance, controversial whether it requires activities and substances susceptible to cause harm to be regulated and possibly prohibited, even where full scientific evidence cannot be provided, or whether preventive actions are merely allowed, but not necessarily requested, in such case. On the other hand, there is some disagreement with regard to its legal nature: the terms of Rio Principle 15 suggest that it is of obligatory character – a view that is particularly supported by the European Union (which argues that the principle forms part of customary law) but denied by the United States. See EC Hormones (n 672) 46ff paras 120–25. Moreover, terminology with regard to the precautionary approach – or principle – is not uniform. Global agreements usually refer to the precautionary approach or, alternatively, precautionary measures: see, for instance, Vienna Convention for the Protection of the Ozone Layer (1985 Vienna Convention) (adopted on 22 March 1985, entered into force on 22 September 1988) 1513 unts 323, 26 ilm 1529 (1987) Preamble; Montreal Protocol on Substances that Deplete the Ozone Layer (1987 Montreal Protocol) (adopted on 16 September 1987, entered into force on 1 January 1989, last amended in 1999) 1522 unts 3, 26 ilm 1550 (1987) Preamble; 1992 ospar Convention art 2(2)(a); 1992 unfccc art 3(3); 1996 London Protocol art 3(1); Cartagena Protocol on Biosafety to the Convention on Biological Diversity (Cartagena Protocol) (adopted on 29 January 2000, entered into force on 11 September 2003) 2226 unts 208, 39 ilm 1027 (2000) Preamble; 2001 Stockholm pops Convention art 1. Meanwhile, EU law and European treaties generally refer to the precautionary principle: see, in particular, Consolidated Version of the Treaty on the Functioning of the European Union (tfeu) [2016] oj C202/1 art 191(2).
See South China Sea Arbitration (n 584) 375 para 944.
ibid 373 para 941.
ibid 373 para 941. The Philippines’ allegations with regard to the harmful fishing techniques by vessels flying under Chinese flag fall into the first category: China had a positive obligation to take active measures to protect and preserve the marine environment. In line with the cases discussed above, the tribunal held that beyond the adoption of appropriate rules and measures to prohibit a harmful practice, enforcement of such rules was an indispensable part of the due diligence obligation of states. As China ‘must have known of, and deliberately tolerated, and protected the harmful acts’, the tribunal found that China breached its obligations under Article 192 of the convention: ibid 383 para 964. China’s construction activities on seven reefs, on the other hand, contrasted with China’s negative obligation not to degrade the marine environment, as the activities were part of ‘an official Chinese policy and program implemented by organs of the Chinese State’: ibid 388 para 976.
South China Sea Arbitration (n 584) 375 para 944.
ibid 394–97 paras 984–91.
Chagos Marine Protected Area Arbitration (n 584).
ibid 210–12 paras 537–41.
South China Sea Arbitration (n 584) 374 para 942 (emphasis added).
ibid 380 para 956, citing Southern Bluefin Tuna Cases (n 584) 295 para 70.
South China Sea Arbitration (n 584) 376 para 945; Chagos Marine Protected Area Arbitration (n 584) 211 para 538.
Convention on International Trade in Endangered Species of Wild Fauna and Flora (cites) (adopted on 3 March 1973, entered into force on 1 July 1975, as amended in 1979 and 1983) 993 unts 243.
The tribunal moreover took notice of references made in the scientific reports before it to the fao ‘Code of Conduct for Responsible Fisheries’ (1995). The code supported the reports’ findings that the fishing methods applied by Chinese fishing vessels were to be qualified as irresponsible and unsustainable: see South China Sea Arbitration (n 584) 386 para 970.
South China Sea Arbitration (n 584) 376 para 945, and 380 para 956. Informed by these definitions and standards, the tribunal concluded that it had ‘no doubt from the scientific evidence before it that the marine environments where the allegedly harmful activities took place […] constitute “rare or fragile ecosystems”’ and that ‘[t]hey are also the habitats of “depleted, threatened or endangered species”’.
ibid 380–82 paras 956–60.
In its Gabčíkovo-Nagymaros Judgment, the icj held that ‘in the field of environmental protection, vigilance and prevention are required on account of the often irreversible character of damage to the environment and of the limitations inherent in the very mechanism of reparation of this type of damage’: Gabčíkovo-Nagymaros (n 543) 78 para 140. See also Ulrich Beyerlin, ‘New Developments in the Protection of the Marine Environment: Potential Effects of the Rio Process’ (1995) 55 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 544, 553; Alexandre Kiss and Dinah Shelton, International Environmental Law (2nd edn, Transnational Publishers 2000) 263; Sadeleer (n 447) 61–90; Sands and Peel (n 447) 200–03; Edith Brown Weiss and others, International Environmental Law and Policy (2nd edn, Aspen Publishers 2007) 257–383.
cf ilc, ‘2001 ILC Draft Articles on Prevention of Transboundary Harm’ (n 662) 390–91 para 3.
The concept of pollution control assumes that environmental damage can be avoided by ‘controlling the manner, time and rate at which pollutants enter the environment’: ilo, ‘Chapter 55 – Environmental Pollution Control’, Encyclopaedia of Occupational Health and Safety (4th edn, ilo 2016) Part vii <
1982 unclos arts 207–12.
ibid arts 213–22.
unclos distinguishes between seabed activities subject to national jurisdiction and activities in the Area.
1982 unclos arts 207(1–2); 208(1–2); 209(2); 210(1–2); 211(2) and (4); 212(1–2).
unclos has been criticized for its failure to set concrete standards and because it does not contain any concrete provisions with regard to the actual reduction in pollution levels: see Boyle, ‘Marine Pollution under the Law of the Sea Convention’ (n 581) 353–55; Hassan (n 364) 5 and 82–83; Qing-Nan (n 643) 103–05; Diana L Torrens, ‘Protection of the Marine Environment in International Law: Toward an Effective Regime of the Law of the Sea’ (1994) 19 Queens Law Journal 613, 625; VanderZwaag and Powers (n 462) 425; Yankov (n 454) 281.
Nordquist, Rosenne and Yankov (n 585) 65.
See Boyle, ‘Marine Pollution under the Law of the Sea Convention’ (n 581) 352.
1982 unclos arts 208(5) and 211(1).
With regard to seabed activities, such laws, regulations and measures ‘shall be no less effective than international rules, standards and recommended practices and procedures’: unclos arts 208(3) (pollution from seabed activities subject to national jurisdiction) and 209(2) (pollution from seabed activities in the Area). With regard to dumping, they ‘shall be no less effective in preventing, reducing and controlling such pollution than the global rules and standards’: unclos art 210(6). Regulation of pollution from vessels by the flag state ‘shall at least have the same effect as that of generally accepted international rules and standards established through the competent international organization or general diplomatic conference’: unclos art 211(2).
1982 unclos arts 214, 216(1) and 217(1).
The imo (originally called the Inter-Governmental Maritime Consultative Organization) was created in 1948 by the UN Maritime Conference in Geneva. imo is a specialized agency of the UN responsible for global standard-setting in the field of maritime safety and security, and of environmental performance of international shipping. In 1975, the imo Marine Environment Protection Committee (mepc) was formed. Conventions concluded under the auspices of or administered by imo include: 1969/92 clc; 1969 intervention; International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage (adopted on 18 December 1971, entered into force on 16 October 1978, ceased to be in force from 24 May 2002), superseded by its 1992 Protocol (1992 fund) (adopted on 27 November 1992, entered into force on 30 May 1996); 1972 London Dumping Convention; 1996 London Protocol; 1973/78 marpol; 1990 oprc; Protocol on Preparedness, Response and Co-operation to Pollution Incidents by Hazardous and Noxious Substances (2000 oprc-hns Protocol) (adopted on 15 March 2000, entered into force on 14 June 2007); International Convention on the Control of Harmful Anti-fouling Systems on Ships (2001 afs) (adopted on 5 October 2001, entered into force on 17 September 2008); International Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances by Sea (hns) (adopted on 3 May 1996, not in force) superseded by its 2010 Protocol (adopted on 30 April 2010, not yet in force).
Coastal states are generally bound to international standards and may only be allowed to adopt stricter standards under restrictive conditions: 1982 unclos art 211(5) and (6).
marpol is one of the key conventions for the protection of the marine environment from sea-based sources of marine plastic debris. The instrument covers pollution arising from the normal operation of ships and, to a more limited extent, from accidental loss. It was adopted in 1973 and was substantially amended by its 1978 protocol before entering into force. marpol currently includes six annexes providing for technical regulations on the prevention of pollution by oil, noxious liquid substances in bulk, harmful substances in packaged form, sewage from ships, garbage from ships, and air pollution, respectively. Annex v, which came into force on 31 December 1988 and was substantially revised in 2013, regulates the prevention of pollution by garbage from ships. It prohibits discharge of all garbage into the sea, except as provided otherwise in the Annex. The disposal of plastics at sea – irrespective of the type of plastic and the region of the sea – is strictly prohibited by Annex v (reg 3(2)). The disposal is exceptionally permitted if it is deemed ‘necessary for the purpose of securing the safety of a ship and those on board or saving life at sea’ or in the event of damage to a ship (reg 7(1.1–1.2)). Accidental loss of synthetic fishing nets is not covered if ‘all reasonable precautions have been taken to prevent such loss’ (reg 7(1.3)). Parties to Annex v must provide garbage receptacles at their ports in order for ships to dispose of their garbage in a sound manner when entering a port (reg 8). It is mainly incumbent on the state a ship is registered with (flag state) to ensure the ship’s compliance with marpol standards. For this purpose, it has to enact domestic laws and implementing regulations and to set in place a certification and control system. As of September 2021, marpol Annex v has been ratified by 155 countries the combined merchant fleets of which constitute approximately 98.5 per cent of the gross tonnage of the world’s merchant fleet. For further information on marpol 73/78 and its Annex v in particular, including discussions on successes and challenges in enforcement, see, in general, Rebecca Becker, ‘MARPOL 73/78: An Overview in International Environmental Enforcement’ (1998) 10 Georgetown International Environmental Law Review 625; Jeff B Curtis, ‘Vessel-Source Oil Pollution and MARPOL 73/78: An International Success Story’ (1984) 15 Envtl. L. 679; Andrew Griffin, ‘MARPOL 73/78 and Vessel Pollution: A Glass Half Full or Half Empty?’ (1994) 1 Indiana Journal of Global Legal Studies 489; Paul E Hagen, ‘International Community Confronts Plastics Polluting from Ships: MARPOL Annex V and the Problem That Won’t Go Away’ (1990) 5 Am. UJ Int’l L. & Pol’y 425; John R Henderson, ‘A Pre- and Post-MARPOL Annex V Summary of Hawaiian Monk Seal Entanglements and Marine Debris Accumulation in the Northwestern Hawaiian Islands, 1982–1998’ (2001) 42 Marine Pollution Bulletin 584; Bruce S Maheim Jr, ‘Annex V of the MARPOL Convention: Will It Stop Marine Plastic Pollution?’ (1988) 1 Georgetown International Environmental Law Review 71; Gerard Peet, ‘The MARPOL Convention: Implementation and Effectiveness’ (1992) 7 Int’l J. Estuarine & Coastal L. 277; Andrew Rakestraw, ‘Open Oceans and Marine Debris: Solutions for the Ineffective Enforcement of MARPOL Annex V’ (2012) 35 Hastings Int’l & Comp. L. Rev. 383.
The London Dumping Convention and its 1996 Protocol address the prevention of marine pollution by dumping at sea. For the purposes of the convention, dumping is defined as ‘any deliberate disposal at sea of wastes or other matter from vessels, aircraft, platforms or other man-made structures at sea’, as well as ‘any deliberate disposal at sea of vessels, aircraft, platforms or other man-made structures at sea’ (art 3(1)(a) of the Convention). Parties to the convention and the protocol are obliged to prohibit dumping into the sea of any wastes or other matter (except for a limited number of clearly defined substances, the dumping of which requires a permit) and the incineration at sea of waste or other matter (London Protocol art 4–5 and Annex i). Dumping and incineration of plastic wastes is prohibited; respective permits are not envisaged. The objective of the protocol not only includes pollution prevention, but also the elimination of pollution caused by dumping or incineration at sea to the maximum practicable extent (London Protocol art 2). The protocol obliges states to apply a precautionary approach and the polluter-pays principle (London Protocol art 3(1–2)). It moreover urges parties to control dumping of wastes and other matter from vessels and aircraft in internal waters at their ‘discretion’ (London Protocol art 7(2)). While both the convention and the protocol call for parties to protect and preserve the marine environment from all sources of pollution, they do not contain any specific obligations with regard to land-based pollution sources. Rather, internal waters and watersheds are excluded explicitly from the definition of ‘sea’ for the purposes of the convention and the protocol. Major land-based pollution sources such as industrial discharges into rivers do, thus, not fall into the scope of the London dumping regime. As of September 2021, 87 countries had ratified the London Convention and 53 countries had ratified its protocol.
See imo, ‘Implications of the United Nations Convention on the Law of the Sea for the International Maritime Organization’ (2014) leg/misc/8 10–12. See also Birnie, Boyle and Redgwell (n 488) 150 and 404; Boyle, ‘Marine Pollution under the Law of the Sea Convention’ (n 581) 356; Rothwell and Stephens (n 364) 372; Tanaka, International Law of the Sea (n 360) 277.
Emphasis added. An almost identical wording is used in art 23 of the 1997 Watercourses Convention.
1982 unclos art 207(2).
ibid art 207(3).
ibid art 207(4).
ibid arts 212 and 222. For more information on the regulation of atmospheric sources under unclos, see James Harrison, ‘Pollution of the Marine Envrionment from or Through the Atmosphere’ in David Joseph Attard and others (eds), The IMLI Manual on International Maritime Law Volume III: Marine Environmental Law and International Maritime Security Law (Oxford University Press 2016).
It is not perfectly clear from the text of the provision whether the word necessary refers to ‘other measures’ only or also to ‘laws and regulations’. In any case, it plays a double-edged role in this context. It can be interpreted as an (abstract) minimum standard or as a qualifying factor. As an indefinite legal term, it will probably add to the discretionary space of states in the implementation of the provision.
Safeguards include, for instance, the principle of non-discrimination (unclos Article 227) and the observance of recognized rights of the accused (unclos art 230).
See Nordquist, Rosenne and Yankov (n 585) 132.
gesamp, ‘The Review of the Health of the Oceans’ (unesco 1982) Reports and Studies No 15.
gesamp, ‘The State of the Marine Environment’ (n 283) para 16. See also Yankov (n 454) 281.
See Tanaka, International Law of the Sea (n 360) 280–81.
See, for instance, Hassan (n 364) 40. For relevant discussions in the negotiation history of unclos see Boyle, ‘Marine Pollution under the Law of the Sea Convention’ (n 581) 354.
1982 unclos art 207(1).
See Yankov (n 454) 280.
Arguably, a need for cooperation is more obvious in these fields, because pollution by dumping and accidental or operational discharge from vessels often involves legislative or enforcement jurisdiction of two or more states, namely the state a vessel is registered with (flag state) and the states that exercise territorial jurisdiction over areas (coastal state) and ports (port state) entered by the vessel: see 1982 unclos arts 210(5); 211(2–6); 216(1); 217; 220.
In view of the references made in unclos to regional cooperation, regional agreements may be seen as instruments covered by vclt Article 31(2)(b) and are thus relevant to the interpretation of unclos Part xii. Article 31(2)(b) 1969 vclt reads as follows: ‘The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes: […] Any instrument which was made by one or more parties in connexion with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty’.
Widespread ratification or acceptance might be a relevant criterion for a rule or standard to be considered internationally agreed: see discussion in Boyle, ‘Marine Pollution under the Law of the Sea Convention’ (n 581) 355–56.
Agenda 21 and the sdgs are outcomes of global summits and thus clearly fulfil the criteria of ‘internationally agreed’. The same is true for the gpa, which was adopted by 108 countries and has been broadly supported and repeatedly highlighted by General Assembly resolutions and other documents, including the ‘Montreal Declaration on the Protection of the Marine Environment from Land-Based Activities’ (2001); ‘Beijing Declaration on Furthering the Implementation of the Global Programme of Action for the Protection of the Marine Environment from Land-Based Activities’ (2006); ‘Manila Declaration on Furthering the Implementation of the Global Programme of Action for the Protection of the Marine Environment from Land-Based Activities’ (n 495). The qualification of the Honolulu Strategy is less certain, especially in view of the fact that it was never formally agreed on by states but was drafted as a guiding tool for both public and private actors and then launched at a multi-stakeholder event. However, by suggesting a global framework for the prevention and management of marine debris, the Honolulu Strategy is the most concise instrument in response to a problem the severity, scale and acuteness of which has been increasingly emphasized by the UN General Assembly and other international fora. While it might not formally be covered by Article 207, it is surely relevant in this context and may provide suitable guidance to states in the implementation of their duties.
Emphasis added.
The unclos travaux preparatoires are silent about the exact meaning of the term applicable in this context but seem to suggest a restrictive interpretation of the term: see Nordquist, Rosenne and Yankov (n 585) 216 and 220.
See discussion in Boyle, ‘Marine Pollution under the Law of the Sea Convention’ (n 581) 356.
See Nordquist, Rosenne and Yankov (n 585) 133.
See UN Doc A/conf.62/C.3/sr.19, ‘19th Meeting of the Third Committee’ in United Nations (ed), Official Records of the Third United Nations Conference on the Law of the Sea, vol iv (2009); UN Doc A/conf.62/C.3/sr.33, ‘33rd Meeting of the Third Committee’ in United Nations (ed), Official Records of the Third United Nations Conference on the Law of the Sea, vol vi (2009).
International Convention for the Regulation of Whaling (1946 icrw) (adopted on 2 December 1946, entered into force on 10 November 1948) 161 unts 72.
Whaling in the Antarctic (n 592) 248 para 46.
ibid 252 para 58.
ibid 257 para 83.
See Boyle, ‘Marine Pollution under the Law of the Sea Convention’ (n 581) 354.
See Birnie, Boyle and Redgwell (n 488) 389 and 454; Boyle, ‘Marine Pollution under the Law of the Sea Convention’ (n 581) 356–57.
Pulp Mills Judgment (n 544) 45–46 para 101.
ilc, ‘2001 ILC Draft Articles on Prevention of Transboundary Harm’ (n 662) 392 para 7.
ibid 395 para 17.
cf art 4(4) of unclos Annex iii.
Emphasis added.
Policy decisions regarding the allocation of scarce resources in developing countries can entail high opportunity costs with regard to either developmental projects or environmental protection.
See ilc, ‘2001 ILC Draft Articles on Prevention of Transboundary Harm’ (n 662) 395 para 17.
Differential treatment is a mutually accepted exception to reciprocity in international law with the aim to bring about substantive equality among states instead of formal equality. Differential treatment in the event of unequal factual conditions can foster cooperation and effective action at the international level, as well as facilitate implementation of international law, including multinational environmental agreements. It may consist in positive discrimination (e.g. lower commitments) of disadvantaged states, a redistribution of resources towards such countries or flexibility measures such as different timescales (e.g. longer phase-out periods) for developing states. For more information on differential treatment in international law, see, in general, Philippe Cullet, ‘Differential Treatment in International Law: Towards a New Paradigm of Inter-State Relations’ (1999) 10 European Journal of International Law 549; Duncan French, ‘Developing States and International Environmental Law: The Importance of Differentiated Responsibilities’ (2000) 49 International and Comparative Law Quarterly 35.
See ilc, ‘2001 ILC Draft Articles on Prevention of Transboundary Harm’ (n 662) 394 para 13.
See ibid 395 para 17.
See ibid 394 para 11.
See Section 1.1.B.ii.1)b) above.
ilc, ‘2001 ILC Draft Articles on Prevention of Transboundary Harm’ (n 662) 391 para 4.
cf Sockholm Principle 23.
See Birnie, Boyle and Redgwell (n 488) 152.
ilc, ‘2001 ILC Draft Articles on Prevention of Transboundary Harm’ (n 662) 395 para 16; Sadeleer (n 447) 64.
Responsibilities of States in the Area (n 647) 36 para 117; Fisheries Advisory Opinion (n 584) 38 para 132.
See Birnie, Boyle and Redgwell (n 488) 149.
1982 unclos art 202.
ibid art 203.
cbdr is reflected in Rio Principles 6, 7, 11 and 15. For more information on cbdr in international law, see Philippe Cullet, ‘Common but Differentiated Responsibilities’ in Malgosia Fitzmaurice, David M Ong and Panos Merkouris (eds), Research Handbook on International Environmental Law (Edward Elgar Publishing 2010); French (n 762); Tuula Honkonen, The Common but Differentiated Responsibility Principle in Multilateral Environmental Agreements: Regulatory and Policy Aspects (Kluwer Law International 2009); ‘The Principle of Common but Differentiated Responsibility in Post-2012 Climate Negotiations’ (2009) 18 Review of European Community & International Environmental Law 257; Fabio Morosini, ‘Trade and Climate Change: Unveiling the Principle of Common but Differentiated Responsibilities from the WTO Agreements’ (2010) 42 George Washington International Law Review 713; Lavanya Rajamani, ‘The Principle of Common but Differentiated Responsibility and the Balance of Commitments under the Climate Regime’ (2000) 9 Review of European Community & International Environmental Law 120; Christopher D Stone, ‘Common but Differentiated Responsibilities in International Law’ (2004) 98 The American Journal of International Law 276; Michael Weisslitz, ‘Rethinking the Equitable Principle of Common but Differentiated Responsibility: Differential versus Absolute Norms of Compliance and Contribution in the Global Climate Change Context’ (2002) 13 Colorado Journal of International Environmental Law and Policy 473.
cbdr is reflected in this sense in 1987 Montreal Protocol art 5(5); 1992 cbd art 20(4); 1992 unfccc art 3.
See Agenda 21 (n 450) ch 17.2. Differential treatment and cbdr in particular is a nearly universally accepted principle. It played a crucial role in the design of different environmental regimes, especially the ones dealing with global or common concerns that are not equally attributable to all the states but affect the international community as a whole. These include the ozone, climate, desertification, biodiversity and forests regimes: see 1985 Vienna Convention for the Protection of the Ozone Layer arts 2(2) and 4(2); 1987 Montreal Protocol arts 5(1) and 10A; 1992 unfccc arts 3 and 4; Kyoto Protocol to the United Nations Framework Convention on Climate Change (Kyoto Protocol) (adopted on 11 December 1997, entered into force on 16 February 2005) UN Doc fccc/cp/1997/7/Add.1, 2303 UNTS 148, 37 ilm 22 (1998) art 10; 1994 unccd arts 3(d) and 6; 1992 cbd arts 16 and 20 in particular; 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) para 9(a). The classical and rigid distinction between developing and developed states (or typically of Annex i and non-Annex i countries in the unfccc context) has been challenged under the 2015 Paris Agreement, in which all countries are required to contribute to reducing greenhouse-gas emissions, while recognizing that emission peaking will take longer for developing countries: Paris Agreement (adopted by unfccc cop decision on 12 December 2015, entered into force on 4 November 2016) in Report of the cop 21, fccc/cp/2015/10/Add.1, Annex art 4(1–4).
See Jambeck and others (n 291) 769.
See South China Sea Arbitration (n 584) 373–75 paras 941 and 944.
See Responsibilities of States in the Area (n 647) 48–49 paras 158–62. The concept does also not apply to treaties regulating ultrahazardous activities or pollution from ships (1973/78 marpol); dumping at sea (1972 London Dumping Convention); or the conduct of activities on the deep seabed (unclos Part xi): Birnie, Boyle and Redgwell (n 488) 136.
Responsibilities of States in the Area (n 647) 37 para 117; Fisheries Advisory Opinion (n 584) 38 para 132.
1982 unclos art 1(4) (emphasis added).
See ec Hormones (n 672) 179–86. Risk assessment is therefore not to be confused with risk management, where States have to decide how to deal with a given risk: see Thomas Cottier, ‘Technology and the Law of International Trade Regulation’ in Roger Brownsword, Eloise Scotford and Karen Yeung (eds), The Oxford Handbook of Law, Regulation and Technology (Oxford University Press 2017) 1039–40.
1982 unclos art 207(1).
ilc, ‘2001 ILC Draft Articles on Prevention of Transboundary Harm’ (n 662) 386–90 Article 2 with commentaries. Activities generally considered ultra-hazardous require a high standard of care. An ultra-hazardous activity has been defined as ‘an activity with a danger that is rarely expected to materialize but might assume, on that rare occasion grave (more than significant, serious or substantial) proportions’: ibid 381 para 2. See comments by Handl, ‘Transboundary Impacts’ (n 662) 539–40.
In the case of marine pollution, such factors may include weather conditions, geographical location, ocean currents, the occurrence and behaviour of affected marine species, as well as the occurrence and abundance of other toxic substances and their combined effect on human health and the environment.
Given the present uncertainty of the impact of many anthropogenic substances in the marine environment and the risks they may present to important resources, precautionary approaches are clearly needed in determining the amounts of many substances that should be allowed to enter the oceans and the priorities for the implementation of control measures:
United Nations, ‘Report of the Secretary-General of the Conference on the Protection of the Oceans, All Kinds of Seas Including Enclosed and Semi-Enclosed Seas, Coastal Areas and the Protection Rational Use and Development of Their Living Resources’ (1991) UN Doc a/conf.151/pc/30 and Corr. 1 para 54, reprinted in Netherlands Institute for the Law of the Sea, International Organizations and the Law of the Sea: Documentary Yearbook, vol 7 (1991) 302. In recent unga resolutions, the precautionary approach is increasingly stressed with regard to activities having an impact on the marine environment. For more information on precaution in international environmental law, see David Freestone, ‘The Road from Rio: International Environmental Law After the Earth Summit’ (1994) 6 Journal of Environmental Law 193, 211; Jacqueline Peel, Science and Risk Regulation in International Law (Cambridge University Press 2010) 111–70; Sadeleer (n 447) 91–223; Sands and Peel (n 447) 217–28; Jonathan B Wiener, ‘Precaution’ in Daniel Bodansky, Jutta Brunnée and Ellen Hey (eds), The Oxford Handbook of International Environmental Law (Oxford University Press 2007) 558–610.
In international law, there are various differing thresholds of potential harm for precautionary measures to be taken: Rio Principle 15 refers to ‘threats of serious or irreversible damage’ and sets a relatively high threshold. In contrast, 1992 ospar Convention Article 2(a) holds that ‘preventive measures are to be taken when there are reasonable grounds for concern that substances […] may bring about hazards […]’.
See Birnie, Boyle and Redgwell (n 488) 153 and 163. On the relation between precautionary measures and the allocation of the burden of proof, see ibid 158.
Responsibilities of States in the Area (n 647) 40 para 131.
unep, ‘Goals and Principles of Environmental Impact Assessment (unep 1987 eia Principles)’ (1987) Governing Council Res 14/25 (1987), endorsed by UN General Assembly Res 42/184 (1987) Preamble. On environmental impact assessments, see Atapattu (n 545) 273–77 and 289–378; Birnie, Boyle and Redgwell (n 488) 164–75; Neil Craik, The International Law of Environmental Impact Assessment: Process, Substance and Integration (Cambridge University Press 2008); ‘Principle 17: Environmental Impact Assessment’ in Jorge E Viñuales (ed), The Rio Declaration on Environment and Development: A Commentary (Oxford University Press 2015).
Convention on Environmental Impact Assessment in a Transboundary Context (1991 Espoo Convention) (adopted on 25 February 1991, entered into force on 10 September 1997) 1989 unts 309, 30 ilm 802 (1991) art 1(vi).
Atapattu (n 545) 277.
On sustainable development, see Section 2.1.A.ii.1) above.
See South China Sea Arbitration (n 584) 395–97 paras 987–91; ilc, ‘2001 ilc Draft Articles on Prevention of Transboundary Harm’ (n 662) arts 4–9, especially art 7.
See Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (1998 Aarhus Convention) (adopted on 25 June 1998, entered into force on 30 October 2001) 2162 unts 447, 38 ilm 517 (1999). On the relevance of environmental impact assessment in relation to the Aarhus Convention, see Atapattu (n 545) 356–77. See also Birnie, Boyle and Redgwell (n 488) 164–75; Handl, ‘Transboundary Impacts’ (n 662) 543. cf ilc, ‘2001 ilc Draft Articles on Prevention of Transboundary Harm’ (n 662) 422 art 13 with commentary.
See Craik, ‘Principle 17: Environmental Impact Assessment’ (n 792) 458. Birnie and others conclude that ‘at present general international law neither requires states to assess possible global effects nor effects wholly within their own borders’: Birnie, Boyle and Redgwell (n 488) 167. cf Alex G Oude Elferink, ‘Environmental Impact Assessment in Areas beyond National Jurisdiction’ (2012) 27 The International Journal of Marine and Coastal Law 449, arguing that the duty to undertake environmental impact assessments also applies to impacts that are caused or arise in areas beyond national jurisdiction.
In the Gabčíkovo-Nagymaros Judgment, the icj held that not only with regard to new activities but also when continuing with activities begun in the past, states ‘should look afresh at the effects on the environment of [their] operation’ and take into account new norms and standards that have been developed: Gabčíkovo-Nagymaros (n 543) 77–78 para 140.
A request for states to undertake environmental impact assessment for ‘proposed activities that are likely to have a significant adverse impact on the environment’ is also expressed in Rio Principle 17. Much like unclos art 206, Rio Principle 17 does not refer to the risk of transboundary harm in particular. Instead, it is formulated in more general terms and includes in its scope all activities that are ‘subject to a decision of a competent national authority’, including state-driven activities and activities or projects that are subject to licensing or approval by the state.
On the threshold of foreseeability with regard to environmental impact assessments, see Birnie, Boyle and Redgwell (n 488) 171.
See n 662.
Protocol on Strategic Environmental Assessment to the 1991 Espoo Convention (sea) (adopted on 21 May 2003, entered into force 11 July 2010) Doc. ece/mp.eia/2003/2. All 45 countries that are currently parties to the Espoo Convention and the 33 parties to the sea Protocol (status of September 2021) are members of the UN Economic Commission for Europe (unece). In 2014, the convention was opened to accession by non-unece countries. The Espoo Convention and its protocol do not reflect customary rules. The icj thus denied their applicability to non-parties: Pulp Mills Judgment (n 544) 83 para 205.
sea Protocol arts 1(a–b), 4 and 13.
Birnie and others note in this regard that in contrast to Articles 207–11, no reference is made to internationally agreed rules and standards: Birnie, Boyle and Redgwell (n 488) 173–74.
See Nordquist, Rosenne and Yankov (n 585) 124 para 206.6(b); South China Sea Arbitration (n 584) 378 para 948. Because China failed to communicate any assessment results, the tribunal found that China did not fulfil its obligations under unclos art 206: South China Sea Arbitration (n 584) 396–97 para 991.
For more information on the Espoo convention, see, for instance, Atapattu (n 545) 309–18. On the content of environmental impact assessments, see Craik, ‘Principle 17: Environmental Impact Assessment’ (n 792) 459–60.
See Nordquist, Rosenne and Yankov (n 585) 115 para 204.8(d).
See ibid.
See Responsibilities of States in the Area (n 647) 72 and 43–46 paras 141–50; South China Sea Arbitration (n 584) 395–97 paras 987–91. See also Handl, ‘Transboundary Impacts’ (n 662) 543; Tanaka, International Law of the Sea (n 360) 286.
On Life-Cycle Assessment of plastic products, see Section 1.1.C above.
See Section 1.2.C above on the main sources of marine plastic pollution and Chapter 2.3 below on national measures.
South China Sea Arbitration (n 584) 394–95 paras 984–86. The arbitral tribunal held that China failed to cooperate with other states with regard to its land reclamation and construction of artificial islands, which caused ‘severe, irreparable harm to the coral reef ecosystem’. The tribunal concluded that China had breached its obligations under unclos art 197 and other provisions: ibid 475–76.
MOX Plant (n 689) para 82. See also Case Concerning Land Reclamation (n 689) para 92; Lac Lanoux Arbitration (Spain v France) (1957) 7 UN Rep Int’l Arb Awards 281 para 22; North Sea Continental Shelf, Judgment [1969] icj Rep 1969 3 47 para 85; Gabčíkovo-Nagymaros (n 543) 78 para 141; Southern Bluefin Tuna Cases (n 584) para 78.
See Nordquist, Rosenne and Yankov (n 585) 78.
1982 unclos art 197. cf Rio Principles 7 and 27.
ibid art 198. See also Rio Principles 18 and 19.
See Nordquist, Rosenne and Yankov (n 585) 83.
1982 unclos art 199.
ibid art 200.
ibid art 201.
unea Resolution 2/11 (2016) (n 521) para 17. For a summary of key research needs, see unep, ‘UNEA-2 Technical Report on Marine Plastic Debris’ (n 509) 175–79.
In the report of the Executive Director on Resolution 1/6, joint development of key performance indicators is recommended to monitor plastic litter and assess related measures and strategies: unep, ‘Resolution 1/6: Marine Plastic Debris and Microplastics – Report of the Executive Director’ (2016) unep/ea.2/5 6 para 8(h)(vi).
Jambeck and others (n 291) 770.
For 2021, low-income economies are defined as those with a gross national income (gni) per capita of US$1,045 or less in 2020; lower middle-income economies are those with a gni per capita between US$1,046 and US$4,095; upper middle-income economies are those with a gni per capita between US$4,096 and US$12,695; high-income economies are those with a gni per capita of US$12,696 or more. World Bank, ‘World Bank Country and Lending Groups – Data’ (2021) <
See csd, ‘Report of the Expert Group Meeting on Identification of Principles of International Law for Sustainable Development, Background Paper (csd Report on Principles for Sustainable Development)’ (1995) para 81; Atapattu (n 545) 119.
1982 unclos art 202(a) (emphasis added).
ibid art 202(b).
ibid art 202(c).
See Nordquist, Rosenne and Yankov (n 585) 104.
See ibid 107–8.
As confirmed at the Ministerial Conference on Marine Litter in September 2021: see iisd, ‘Ministerial Conference on Marine Litter and Plastic Pollution: 1–2 September 2021’ (n 528).
Dupuy and Viñuales (n 582) 100; Nordquist, Rosenne and Yankov (n 585) 425.
According to Article 237(1), the provisions of Part xii are ‘without prejudice to the specific obligations assumed by States [or international organizations parties to the convention in accordance with Article 305(1)(f)] under special conventions and agreements’ relating to the protection and preservation of the marine environment, regardless of whether these conventions and agreements were concluded prior to or after the adoption of unclos, provided that they have been concluded ‘in furtherance of the general principles set forth in [unclos]’. Article 237(2) provides that special obligations as referred to in the first paragraph ‘should be carried out in a manner consistent with the general principles and objectives’ of unclos.
See Section 2.1.B.ii.2)b) above.
The duty of states to comply with international rules and standards in the adoption of laws and regulations to prevent, reduce and control marine pollution (or, in the case of land-based pollution sources and pollution from and through the atmosphere, to take into account such rules and standards) presupposes the applicability of corresponding instruments and their compatibility with the unlcos Part xii regime.
Another way of changing and expanding the framework is by means of implementing agreements: see Birnie, Boyle and Redgwell (n 488) 382. So far, two such agreements have been adopted: the 1994 Agreement on the Implementation of unclos Part xi was adopted shortly before unclos entered into force in 1994 in order to restrict the application of the concept of common heritage of mankind as defined in Part xi of the convention. The 1995 Fish Stock Agreement sets out principles for the conservation and management of straddling fish stocks and of highly migratory fish stocks. In addition, in June 2015, the UN General Assembly decided to develop an international legally binding instrument, possibly under unclos, on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction (bbnj): see unga Res 69/292 (2015), ‘Development of an International Legally Binding Instrument under the United Nations Convention on the Law of the Sea on the Conservation and Sustainable Use of Marine Biological Diversity of Areas beyond National Jurisdiction’. At its 72nd session, it decided to convene an intergovernmental conference to this purpose: see unga Res 72/249 (2017), ‘International Legally Binding Instrument under the United Nations Convention on the Law of the Sea on the Conservation and Sustainable Use of Marine Biological Diversity of Areas beyond National Jurisdiction’. Three sessions of the conference were held in September 2018, March–April 2019 and August 2019, respectively.
- 1.States are responsible for the fulfilment of their international obligations concerning the protection and preservation of the marine environment. They shall be liable in accordance with international law.
- 2.States shall ensure that recourse is available in accordance with their legal systems for prompt and adequate compensation or other relief in respect of damage caused by pollution of the marine environment by natural or juridical persons under their jurisdiction.
- 3.With the objective of assuring prompt and adequate compensation in respect of all damage caused by pollution of the marine environment, States shall cooperate in the implementation of existing international law and the further development of international law relating to responsibility and liability for the assessment of and compensation for damage and the settlement of related disputes, as well as, where appropriate, development of criteria and procedures for payment of adequate compensation, such as compulsory insurance or compensation funds.
Article 235(3) has to be read together with Article 304, which specifically refers to ‘existing rules and the development of further rules regarding responsibility and liability under international law’. The two provisions reflect the general uncertainty prevailing in this field of law. cf Stockholm Principle 22 and Rio Principle 13.
1982 unclos art 235(2). See Responsibilities of States in the Area (n 647) 43 paras 139–40.
These challenges relate to the discharge of due diligence obligations such as the duty of prevention; the threshold level environmental damage must have to be actionable; the burden of proof, especially in situations in which a party resorts to the precautionary approach; the question of liability without fault and other potential implications of the polluter-pays principle; and the right of states to bring a claim in the event of a breach of erga omnes obligations: see, for instance, Robert V Percival, ‘International Responsibility and Liability for Environmental Harm’ in Shawkat Alam and others (eds), Routledge Handbook of International Environmental Law (Routledge 2015) 683; Nordquist, Rosenne and Yankov (n 585) 412 para 235.10(b–c).
ilc, ‘Draft Articles on Responsibility of States for Internationally Wrongful Acts’, Report of the International Law Commission 53th session (UN Doc A/56/10 ch ive1 2001). Every breach of an obligation by (and attributable to) a state constitutes an internationally wrongful act and entails the international responsibility of that state (Draft Articles 1–2). State responsibility includes an obligation of the state to cease the wrongful act and, if circumstances so require, assure or guarantee non-repetition (Draft Article 30). It moreover includes an obligation to make full reparation for the injury caused by the wrongful act (Draft Article 31). Full reparation may consist in restitution, compensation or satisfaction, in this order of preference (Draft Articles 34–37). If the responsible state does not comply with the obligations arising from its responsibility and fails to cease the wrongful act or fully repair the damage, injured states are entitled to take peaceful countermeasures (Draft Articles 49–54). They may do so only after they have requested reparation, duly notified the responsible state on planned countermeasures and offered to negotiate with that state (Draft Article 52). The Draft Articles widely reflect customary rules but include a number of provisions that rather reflect progressive development of the law of state responsibility.
ilc, ‘Draft Articles on the Responsibility of International Organizations’, Report of the ILC 63th session (UN doc A/66/10 ch ve1 2011).
ilc, ‘2001 ILC Draft Articles on Prevention of Transboundary Harm’ (n 662).
ilc, ‘2006 Draft Principles on the Allocation of Loss’ (n 568).
See R Lefeber, Transboundary Environmental Interference and the Origin of State Liability (Martinus Nijhoff Publishers 1996) 187. See also Alexandre Kiss and Dinah Shelton, ‘Strict Liability in International Environmental Law’ in Tafsir Malick Ndiaye and Rüdiger Wolfrum (eds), Law of the Sea, Environmental Law and Settlement of Disputes (Martinus Nijhoff Publishers 2007) 1139.
See Percival (n 841) 681.
See Responsibilities of States in the Area (n 647).
See Birnie, Boyle and Redgwell (n 488) 215–16; Antonio Cassese, International Law (oup Oxford 2005) 250–51.
Measures may, for instance, consist of prohibitions and sanctions of littering and dumping, careful regulation of landfills, especially if they are located close to watersheds or the sea, the set in place of an effective and sound waste management system, and the control of point sources of plastic pollution. They may also consist of research programms on input reduction related to sources of plastic pollution that are more difficult to address with current technologies, such as, for instance, the millions of tonnes of micro- (or nano-) plastic particles from tyre wear or microfibres in wastewater. Implementation measures will be discussed in more detail in Chapter 2.3 below.
See ilc, ‘2001 ILC Draft Articles on Prevention of Transboundary Harm’ (n 662).
See Section 2.1.D.ii.1) below.
For instance, a case can be made in favour of a phase-out of non-recoverable plastic materials that potentially accumulate in marine environments (e.g. microplastics in personal care products). Such a phase out has been recommended by UN Environment Executive Director: unep, ‘Resolution 1/6: Marine Plastic Debris and Microplastics – Report of the Executive Director’ (n 824) 6.
The degree to which states would have to (or do have to) intervene in production and consumption patterns, in both important national industries and daily individual behaviour, is the main reason for the reluctance of states to tackle the problem of marine plastic pollution, whether through more effective substantial provisions, binding standards or better enforcement.
ilc, ‘2006 Draft Principles on the Allocation of Loss’ (n 568) 119 commentary to Draft Principle 1, para 7.
According to the ilc, significant harm leads to ‘a real detrimental effect’ that ‘must be susceptible of being measured by factual and objective standards’: ilc, ‘2001 ILC Draft Articles on Prevention of Transboundary Harm’ (n 662) art 2 and commentary para 4 at 388. Criteria for determining the threshold of significant harm include the likelihood and severity of harmful effects.
See ilc, ‘2001 ILC Draft Articles on State Responsibility’ (n 842) art 36 para 2. However, the UN Security Council held Iraq liable for any direct damage, ‘including environmental damage and the depletion of natural resources’, as caused by Iraq’s unlawful invasion and occupation of Kuwait: unsc (1991) s/res/687 7 para 16. Compensation was provided for a wide range of environmental damages: uncc, ‘Report and Recommendations Made by the Panel of Commissioners Concerning the Fifth Instalment of “F4” Claims’ (2005) s/ac.26/2005/10. See Philippe Gautier, ‘Environmental Damage and the United Nations Claims Commission: New Directions for Future International Environmental Cases?’ in Tafsir Malick Ndiaye and Rüdiger Wolfrum (eds), Law of the Sea, Environmental Law and Settlement of Disputes (Martinus Nijhoff Publishers 2007) 177–214; Mojtaba Kazazi, ‘The UNCC Follow-up Programme for Environmental Awards’ in Tafsir Malick Ndiaye and Rüdiger Wolfrum (eds), Law of the Sea, Environmental Law and Settlement of Disputes (Martinus Nijhoff Publishers 2007) 1109–29.
Such as in The Trail Smelter Arbitration (United States v Canada) [1941] 3 UN Rep Int’l Arb Awards 1905; Lac Lanoux Arbitration (n 814); Gabčíkovo-Nagymaros (n 543); MOX Plant (n 689); Pulp Mills Judgment (n 544); South China Sea Arbitration (n 584). In the law of state responsibility, a distinction is generally made between injured states and third states. Accordingly, it is distinguished between cases in which only the former are entitled to invoke the responsibility of a state and cases of ‘aggravated’ responsibility that may also be invoked by the latter if certain conditions are fulfilled: see Cassese (n 849) 244.
ilc, ‘2001 ILC Draft Articles on State Responsibility’ (n 842) 299–300 Commentary to art 42(12).
See ibid art 42. cf 1969 vclt art 60.
On the suggestion that a coastal state is obliged towards the world at large to prevent pollution of its territorial sea, see Louis Cavaré, ‘Les problèmes juridiques posés par la pollution des eaux maritimes au point de vue interne et international’ [1964] Revue Generale de Droit International Public 617, 631; O’Connell, The International Law of the Sea (n 590) 987–88.
ilc, ‘2001 ILC Draft Articles on State Responsibility’ (n 842) art 48(1). The article provides that any state other than an injured state is entitled to invoke the responsibility of another state if: (a) ‘The obligation breached is owed to a group of States including that State, and is established for the protection of a collective interest of the group; or (b) The obligation breached is owed to the international community as a whole’.
See Responsibilities of States in the Area (n 647) 54 para 180. On public interest standing, see Charney, ‘Third State Remedies for Environmental Damage to the World’s Common Spaces’ (n 665) 165–66.
See, for instance, Birnie, Boyle and Redgwell (n 488) 233–34; James Crawford, ‘Overview of Part Three of the Articles on State Responsibility’ in James Crawford, Alain Pellet and Simon Olleson (eds), The Law of International Responsibility (Oxford University Press 2010) 934; Bruno Simma, ‘Doctrinal Expressions of Community Interest in International Law’, Collected Courses of the Hague Academy of International Law, vol 250 (The Hague Academy of International Law/Brill Online 1994) 293–301; Christian J Tams, ‘Individual States as Guardians of Community Interests’ in Ulrich Fastenrath and others (eds), From Bilateralism to Community Interest: Essays in Honour of Judge Bruno Simma (Oxford University Press 2011); Anne-Laure Vaurs-Chaumette, ‘The International Community as a Whole’ in James Crawford, Alain Pellet and Simon Olleson (eds), The Law of International Responsibility (Oxford University Press 2010) 1024.
Barcelona Traction (n 660) 32 para 33. See also East Timor (Portugal v Australia) [1995] icj Rep 1995 90 102 para 29; Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Preliminary Objections, Judgment [1996] icj Rep 1996 595 616 para 31. Four years after Barcelona Traction, some of the icj judges explicitly rejected the notion of an actio popularis, that is, the right of a state to bring a claim on behalf of the international community as a whole, in the 1974 Nuclear Tests Cases: see, in particular, Nuclear Tests (Australia v France), Dissenting opinion of Judge de Castro icj Rep 1974 372 390. cf Nuclear Tests (Australia v France), Joint dissenting opinion of Judges Onyeama, Dillard, Jiménez de Aréchaga and Sir Humphrey Waldock icj Rep 1974 312 369–70. Following a unilateral decision by France that it would cease to carry out atmospheric nuclear tests, the icj did not address the merits of the case.
Human rights law is particularly well developed with respect to collective or institutional responses to violations. Several human rights treaties set up mechanisms through which individual states or treaty bodies can invoke the responsibility of a non-compliant state and, for instance, demand cessation of a violation of treaty provisions. Some of these treaties set up judicial or quasi-judicial bodies with the competence to consider individual complaints relating to the compliance by the respective states with the treaty provisions. Similar developments can be observed in international humanitarian law and international criminal law: see Cassese (n 849) 265–67.
Whaling in the Antarctic (n 592); South China Sea Arbitration (n 584).
Cassese (n 849) 263.
The ilc Draft Articles do not specify whether any state other than an injured state is entitled to take countermeasures. In the drafting of the ilc Articles, no agreement could be reached on the matter. A saving clause was introduced in Article 54, leaving the issue to be resolved by later developments in international law. Crawford (n 864) 936–39. However, in the case of a serious breach by a state of an obligation arising under a peremptory norm of general international law, see ilc, ‘2001 ILC Draft Articles on State Responsibility’ (n 842) arts 40–41.
See Birnie, Boyle and Redgwell (n 488) 431.
On liability in international law, see Michael Bowman and Alan E Boyle (eds), Environmental Damage in International and Comparative Law: Problems of Definition and Valuation (Oxford University Press 2002); Alan E Boyle, ‘Globalising Environmental Liability: The Interplay of National and International Law’ (2005) 17 Journal of Environmental Law 3; ‘Liability for Injurious Consequences of Acts Not Prohibited by International Law’ in James Crawford, Alain Pellet and Simon Olleson (eds), The Law of International Responsibility (Oxford University Press 2010); Edward Brans, Liability for Damage to Public Natural Resources: Standing, Damage and Damage Assessment (Kluwer Law International 2001); Jutta Brunnée, ‘Of Sense and Sensibility: Reflections on International Liability Regimes as Tools for Environmental Protection’ (2004) 53 The International and Comparative Law Quarterly 351; Gautier (n 857); Philippe Guttinger, ‘Allocation of Responsibility for Harmful Consequences of Acts Not Prohibited by International Law’ in James Crawford, Alain Pellet and Simon Olleson (eds), The Law of International Responsibility (Oxford University Press 2010); Kazazi (n 857); Lefeber, Origin of State Liability (n 846); Ruth Mackenzie and Ruth Khalastchi, ‘Liability and Compensation for Environmental Damage in the Context of the Work of the United Nations Compensation Commission’ (1996) 5 Review of European Community & International Environmental Law 281; Michel Montjoie, ‘The Concept of Liability in the Absence of an Internationally Wrongful Act’ in James Crawford, Alain Pellet and Simon Olleson (eds), The Law of International Responsibility (Oxford University Press 2010); Percival (n 841); Hanqin Xue, Transboundary Damage in International Law (Cambridge University Press 2003).
In general, state practice does not suggest strict liability of states in cases of transboundary damage. At the most, strict liability for ultrahazardous activities might be considered a general principle of law: see Boyle, ‘Liability for Injurious Consequences of Acts Not Prohibited by International Law’ (n 872) 98; Kiss and Shelton, ‘Strict Liability in International Environmental Law’ (n 846); Lefeber, Origin of State Liability (n 846) 187; Sands and Peel (n 447) 712–13. See also discussion in Birnie, Boyle and Redgwell (n 488) 221–23.
On the polluter pays principle, see Section 2.1.A.ii.2) above. See also Mensah (n 429) 314–15.
ilc, ‘2006 Draft Principles on the Allocation of Loss’ (n 568). At the regional level, the Council of Europe adopted a Convention on liability in 1993, but it has not yet entered into force: Convention on Civil Liability for Damage Resulting from Activities Dangerous to the Environment (1993 Lugano Convention) (adopted by the Council of Europe on 21 June 1993, not yet in force) 32 ilm 1228, cets 150.
ilc, ‘2006 Draft Principles on the Allocation of Loss’ (n 568) Principle 4(1).
See ilc, ‘2006 Draft Principles on the Allocation of Loss’ (n 568) 111 general commentary para 6. Some cases of transboundary damage are preferably addressed via national courts and claims relying on civil liability. The Sandoz chemical spill of 1986, which polluted the Rhine river, is an example of such a case: see Birnie, Boyle and Redgwell (n 488) 219.
ilc, ‘2006 Draft Principles on the Allocation of Loss’ (n 568) Principle 4(2).
ibid Principle 4(3–5).
ibid Principle 5.
ibid Principle 2(a)(iii–iv). See also ilc, ‘2006 Draft Principles on the Allocation of Loss’ (n 568) commentary to Principle 2, paras 11–18.
ilc, ‘2006 Draft Principles on the Allocation of Loss’ (n 568) Principle 6(1–2).
See also 1998 Aarhus Convention art 9 para 4 and Rio Principle 10. Both the ilc Draft Principles and unclos art 235(2) require the state of origin (under the jurisdiction or control of which the hazardous activity is carried out) to ensure access to national remedies. In fact, there are a number of arguments in favour of access for the victims to local remedies in their own state where transboundary damage occurred: see Boyle, ‘Marine Pollution under the Law of the Sea Convention’ (n 581) 368.
ilc, ‘2006 Draft Principles on the Allocation of Loss’ (n 568) Principle 7.
Specific agreements have been concluded in a number of fields, including with regard to nuclear damage, damage caused by space objects, oil pollution damage, damage in connection with the carriage of hazardous and noxious substances by sea, and damage resulting from transboundary movements of hazardous wastes and their disposal.
1982 unclos art 235(1).
The same model is reflected in unclos Article 139 with regard to the responsibility of states for deep seabed operations. States are only liable for their own failure, but not for damage caused by national operators: see Responsibilities of States in the Area (n 647) 52–53 paras 176–77 and 56 para 189; Birnie, Boyle and Redgwell (n 488) 430. In addition, unclos Article 232 provides that states are liable for damage arising from the measures taken by the states for enforcing their laws and regulations ‘when such measures are unlawful or exceed those reasonably required in the light of available information’.
While the ilc liability scheme focuses on the liability of operators, it also allows for alternatives: see Boyle, ‘Liability for Injurious Consequences of Acts Not Prohibited by International Law’ (n 872) 102. Civil liability schemes for marine plastic pollution could be adopted at the regional level, if this is more appropriate or practical: see Mensah (n 429) 322.
For further information, see AO Adede, The System for Settlement of Disputes Under the United Nations Convention on the Law of the Sea: A Drafting History and a Commentary (brill 1987); Alan E Boyle, ‘Dispute Settlement and the Law of the Sea Convention: Problems of Fragmentation and Jurisdiction’ (1997) 46 International and Comparative Law Quarterly 37; ‘The Environmental Jurisprudence of the International Tribunal for the Law of the Sea’ (2007) 22 The international journal of marine and coastal law 369; Jonathan I Charney, ‘The Implications of Expanding International Dispute Settlement Systems: The 1982 Convention on the Law of the Sea’ (1996) 90 The American Journal of International Law 69; John G Collier and Alan Vaughan Lowe, ‘Dispute Settlement in the Law of the Sea’ in John G Collier and Alan Vaughan Lowe (eds), The Settlement of Disputes in International Law: Institutions and Procedures (Oxford University Press 1999); Natalie Klein, Dispute Settlement in the UN Convention on the Law of the Sea (Cambridge University Press 2005); Thomas A Mensah, ‘The Dispute Settlement Regime of the 1982 United Nations Convention on the Law of the Sea’ (1998) 2 Max Planck Yearbook of United Nations Law 307; Myron H Nordquist, Shabtai Rosenne and Louis B Sohn (eds), United Nations Convention on the Law of the Sea 1982: A Commentary, Vol V: Articles 279 to 320 (Center for Oceans Law and Policy and Kluwer Law International 1989); Rosemary Rayfuse, ‘Future of Compulsory Dispute Settlement under the Law of the Sea Convention’ (2005) 36 Victoria University of Wellington Law Review 683; Tullio Treves, ‘A System for the Law of the Sea Dispute Settlement’ in David Freestone, Richard Barnes and David Ong (eds), The Law of the Sea: Progress and Prospects (Oxford University Press 2006); Helmut Tuerk, ‘The Work of the International Tribunal for the Law of the Sea’ (2012) 26 Ocean Yearbook Online 181; Rüdiger Wolfrum, ‘The Settlement of Disputes Before the International Tribunal for the Law of the Sea – A Progressive Development of International Law or Relying on Traditional Mechanisms?’ (2008) 51 Japanese Yearbook of International Law.
Chagos Marine Protected Area Arbitration (n 584); Fisheries Advisory Opinion (n 584); South China Sea Arbitration (n 584).
Responsibilities of States in the Area (n 647); Fisheries Advisory Opinion (n 584); South China Sea Arbitration (n 584).
Southern Bluefin Tuna Cases (n 584); mox Plant (n 689); Case Concerning Land Reclamation (n 689); Chagos Marine Protected Area Arbitration (n 584); Fisheries Advisory Opinion (n 584); South China Sea Arbitration (n 584).
mox Plant (n 689); Case Concerning Land Reclamation (n 689); Responsibilities of States in the Area (n 647); South China Sea Arbitration (n 584).
Southern Bluefin Tuna Cases (n 584); mox Plant (n 689); Case Concerning Land Reclamation (n 689).
See, in particular, Boyle, ‘The Environmental Jurisprudence of the International Tribunal for the Law of the Sea’ (n 889) 380–81.
1982 unclos art 279.
On the different means of dispute settlement, see Cassese (n 849) 278–95; Collier and Lowe (n 889); JG Merrills, International Dispute Settlement (Cambridge University Press 2011); Sands and Peel (n 447) 159–83; Tim Stephens, ‘The Settlement of Disputes in International Environmental Law’ in Shawkat Alam and others (eds), Routledge Handbook of International Environmental Law (Routledge 2015) 180–83.
1982 unclos art 280. If the parties have agreed, through a general, regional or bilateral agreement or otherwise, that a dispute concerning the interpretation or application of the convention shall be submitted to a specific procedure that entails a binding decision, that procedure applies, unless the parties to the dispute agree otherwise: ibid art 282.
1982 unclos art 283(1). The choice is, of course, limited to peaceful means. Recourse to non-peaceful means for the settlement of disputes under the convention is not permitted: see Patibandla Chandrasekhara Rao, ‘Law of the Sea, Settlement of Disputes’, Max Planck Encyclopedia of Public International Law (2011) para 7.
1982 unclos art 281. For disputes related to seabed activities (submitted pursuant to Part xi of the convention), Section 1 also applies if entities other than states are involved in a dispute: see ibid art 285.
See Chandrasekhara Rao (n 899) para 16.
1982 unclos art 286.
ibid art 287(1).
ibid art 287(3).
ibid art 287(5).
ibid art 287(2).
ibid art 288.
ibid art 293(1).
ibid art 289.
ibid art 293(2).
ibid art 296.
Art 9 of unclos Annex vii. See South China Sea Arbitration (n 584) 45 paras 117–18.
1982 unclos art 290(1).
See Southern Bluefin Tuna Cases (n 584); MOX Plant (n 689); Case Concerning Land Reclamation (n 689).
See Birnie, Boyle and Redgwell (n 488) 226–27.
1982 unclos art 290(6).
ibid art 297(1)(c).
ibid art 298(1). In the South China Sea Arbitration, the tribunal concluded that certain claims brought by the Philippines concerning the exceptions activated by China ‘were not exclusively preliminary and would be deferred for further consideration in conjunction with the merits’: South China Sea Arbitration (n 584) 62–63 paras 161–63.
1982 unclos Annex vi art 2(1).
Simma, ‘Universality of International Law from the Perspective of a Practitioner’ (n 668) 278. Simma notably argues that there is more convergence than divergence in international jurisprudence and that, ‘if various international courts do disagree on a point of law, the ensuing judicial dialogue may possibly further progressive development of the law’.
See, for instance, Southern Bluefin Tuna Cases (n 584); MOX Plant (n 689); Case Concerning Land Reclamation (n 689). See also Lac Lanoux Arbitration (n 814); Gabčíkovo-Nagymaros (n 543); Pulp Mills Judgment (n 544). See also Birnie, Boyle and Redgwell (n 488) 213 and 226; Sands and Peel (n 447) 160–61.
See Chagos Marine Protected Area Arbitration (n 584); South China Sea Arbitration (n 584).
In Case Concerning Land Reclamation (n 689) itlos ordered Singapore not to conduct its land reclamation in ways that might cause serious harm to the marine environment. In the Kishenganga Arbitration, the court decided that India shall release a minimum flow of water to a river below a dam: Indus Waters Kishenganga Arbitration (Pakistan v India), Final Award [2013] pca (Arbitral Tribunal 2015). See also Award between the United States and the United Kingdom relating to the rights of jurisdiction of United States in the Bering’s sea and the preservation of fur seals (1893) xxviii Rep Int Arbitr Awards 263; Trail Smelter Arbitration (n 858).
A well-known exception in this respect is the Trail Smelter Arbitration (n 858). Also, the UN Security Council held Iraq liable for any direct damage, ‘including environmental damage and the depletion of natural resources’, caused by Iraq’s unlawful invasion and occupation of Kuwait: unsc (n 857) 7 para 16. Compensation was provided for a wide range of environmental damages: see uncc (n 857). See also Gautier (n 857); Kazazi (n 857).
Birnie, Boyle and Redgwell (n 488) 213.
See ibid 211–12; Jan Klabbers, ‘Compliance Procedures’ in Daniel Bodansky, Jutta Brunnée and Ellen Hey (eds), The Oxford Handbook of International Environmental Law (Oxford University Press 2007) 1001.
In accordance with art 60 of the 1969 vclt.
This is why, prima facie, non-compliance with multilateral environmental treaties seems to be a ‘poor nation’s problem’ in the first place: Klabbers (n 926) 996–98.
Non-compliance may, in this sense, also be due to discrepancies in priority setting among countries. As Sands appositely observed in this respect: ‘The limitations inherent in international arrangements for ensuring compliance with international environmental obligations are well apparent, and developments in international law alone will not be sufficient to overcome the political, economic and social reasons lying behind non-compliance’: Sands and Peel (n 447) 182.
See Klabbers (n 926) 1001–02.
Whether and to what extent these approaches achieve in doing so is disputed: see ibid 1003–05.
On the relation between non-compliance procedures and traditional enforcement mechanisms, see ibid 1005–07.
See Cottier, ‘Technology and the Law of International Trade Regulation’ (n 783) 1041–42.
Xue (n 872) 195.
Indeed, the emphasis unclos puts on global and regional cooperation and an equitable balance of interests ideally lowers the need for recourse to dispute settlement mechanisms.
Allocations essentially depend upon the public good to be produced: see Cottier, ‘Technology and the Law of International Trade Regulation’ (n 783) 1038–39. On multilayered governance and the theory of the five storey house, see Thomas Cottier, ‘Multilayered Governance, Pluralism, and Moral Conflict’ (2009) 16 Indiana Journal of Global Legal Studies 647; ‘Towards a Five Storey House’ in Christian Joerges and Ernst-Ulrich Petersmann (eds), Constitutionalism, Multilevel Trade Governance and International Economic Law (Hart 2011); Thomas Cottier and Maya Hertig, ‘The Prospects of 21st Century Constitutionalism’ (2003) 7 Max Planck Yearbook of United Nations Law 261, ch iv.
See, for instance, reference to the cbd and other multilateral environmental agreements in South China Sea Arbitration (n 584) 376–84 paras 945–64; US Shrimp (n 677) paras 130–4 and 168.
On conflicts and coherence in international environmental law, see: Boyle, ‘Relationship between International Environmental Law and Other Branches of International Law’ (n 668); ilc, ‘Fragmentation Report’ (n 653); Pauwelyn, Conflict of Norms (n 668); Simma, ‘Universality of International Law from the Perspective of a Practitioner’ (n 668); Rüdiger Wolfrum and Nele Matz, Conflicts in International Environmental Law (Springer 2003).
In US Shrimp, the wto Appellate Body relied on a number of environmental agreements to which the US (as defending party to the dispute) is not a party: US Shrimp (n 677).
The analysis in this book focuses on the wto regime and does not take special account of other trade-related instruments or look into related fields, such as investment protection. However, many of the findings may be valid for these instruments as well.
Agreement Establishing the World Trade Organization (Marrakesh Agreement) (adopted on 15 April 1994, entered into force on 1 January 1995) 1867 unts 154, 33 ilm 1144 (1994), Preamble.
In US Shrimp, the wto Appellate Body considered a US measure in protection of migratory sea turtles as unjustifiable because of the failure by the United States to engage in meaningful negotiations with a number of shrimp-exporting countries, while it conducted such negotiations with other countries. In the judgment, much emphasis was put on the need for prior negotiation and international cooperation in furtherance of the principles set forth in unclos Articles 64, 65 and 118: US Shrimp (n 677) 65–72 para 166–76. The Swordfish Stocks Case involved a unilateral ban by Chile on the importation and transit of swordfish catches and their processing in Chilean ports when these catches did not conform to Chilean conservation rules. Chile had adopted conservation rules in accordance with the Framework Agreement for the Conservation of the Living Marine Resources of the High Seas of the South Pacific (Galapagos Agreement) (adopted on 14 August 2000), which was being negotiated and to which Chile is a signatory. In response to the ban, the European Union initiated a wto dispute settlement proceeding against Chile in April 2000. While the case was pending before the wto, Chile started proceedings against the European Union under unclos by instituting an arbitral tribunal. In the case, which was later dealt with by a special chamber instituted by the itlos, Chile argued that the European Union had violated unclos provisions by bringing the case before a wto panel: Conservation and Sustainable Exploitation of Swordfish Stocks in the South-Eastern Pacific Ocean (Chile v European Union) [2000] itlos case No. 7 para 3 lit d. Eventually, both the wto and itlos cases were withdrawn and the dispute was solved by a series of negotiations between Chile and the European Union. For more information on the case, see Peter-Tobias Stoll and Silja Vöneky, ‘The Swordfish Case: Law of the Sea v. Trade’ (2002) 62 zaörv 21.
See, for instance, Brian K Myers, ‘Trade Measures and the Environment: Can the WTO and UNCLOS Be Reconciled?’ (2005) 23 ucla J. Envtl. L. & Pol’y 37, 70–71. See also Franz Xaver Perrez, ‘The Mutual Supportiveness of Trade and Environment’ (2006) 100 asil Proceedings 26.
See Schäli (n 20).
On extraterritorial jurisdiction and unilateralism in a trade-environment context, see Erich Vranes, Trade and the Environment: Fundamental Issues in International Law, WTO Law, and Legal Theory (Oxford University Press 2009) Part ii. In general, it is assumed that the jurisdiction of a state is strongly linked with – and in principle confined to – its territory. Extraterritorial jurisdiction is the exception and requires justification by the state resorting to such measures. The exact definition of extraterritorial jurisdiction is not evident but involves more than mere extraterritorial effects of a specific measure. It arguably consists of a direct interference with a foreign state’s competence to determine its domestic affairs. The question of whether and under what circumstances trade measures are to be classified as extraterritorial and thus require justification under general international law is particularly difficult: on the one hand they are applied within a state or at its border and do not regulate the behaviour of actors outside the state’s jurisdiction in a coercive way. On the other hand, they can strongly influence such behaviour. Some measures have therefore been classified as extraterritorial in a number of panel and Appellate Body reports: ibid 157–68. The US Tuna panel reports of 1991 and 1994, both unadopted, suggest the disputed US measure, consisting in a non-product-related ppm, to be extraterritorial in character: United States – Restrictions on Imports of Tuna (US Tuna i) [1991] gatt Panel Report (unadopted) ds21/r, bisd 39S/55; United States – Restrictions on Imports of Tuna (US Tuna II (EEC)) [1994] gatt Panel Report (unadopted) ds29/r. The position on this issue by the Appellate Body in US Shrimp is less clear. In its report, the Appellate Body refers to a ‘sufficient nexus’ between the sea turtle species protected by the measure and the US: US Shrimp (n 677) para 133. Unilateral trade measures can be defined as ‘regulations that serve to protect the environment, but incur trade impacts and are adopted by one or more states without the consent of the affected state’: Vranes 174.
On ppms see, for instance, Christiane R Conrad, Processes and Production Methods (PPMs) in WTO Law: Interfacing Trade and Social Goals (Cambridge University Press 2011); Kateryna Holzer, Carbon-Related Border Adjustment and WTO Law (Edward Elgar Publishing 2014) ch 5; oecd, ‘Processes and Production Methods (PPMs): Conceptual Framework and Considerations on Use of PPM-Based Trade Measures’ (oecd 1997) ocde/gd(97)137; Robert Read, ‘Process and Production Methods and the Regulation of International Trade’ in Nicolas Perdikis and Robert Read (eds), The WTO and the Regulation of International Trade: Recent Trade Disputes Between the European Union and the United States (Edward Elgar 2005); Vranes (n 946) Part iii ch 3; Jochem Wiers, ‘WTO Rules and Environmental Production and Processing Methods (PPMs)’ (2001) 2 era-Forum 101. See also Section 2.1.C.ii.1).b) below.
See, in particular, US Shrimp (n 677) 65–70 paras 166–172. See also Alan E Boyle, ‘Further Development of the 1982 Convention on the Law of the Sea: Mechanisms for Change’ in David Freestone, Richard Barnes and David Ong (eds), The Law of the Sea: Progress and Prospects (Oxford University Press 2006) 59.
Swordfish Stocks Case (n 943).
General Agreement on Tariffs and Trade (gatt 1947) (entered into force on 1 January 1948) 55 unts 194 1947.
These agreements notably include the Trans-Pacific Partnership (tpp) Agreement among Australia, Canada, Japan, Mexico, the United States, and seven more countries (the US withdrew from negotiations on 23 January 2017) and the Transatlantic Trade and Investment Partnership (ttip) between the United States and the European Union (EU). For an outline and assessment of recent structural changes in world trade law, see Thomas Cottier, ‘International Economic Law in Transition from Trade Liberalization to Trade Regulation’ (2014) 17 Journal of International Economic Law 671; ‘The Common Law of International Trade and the Future of the World Trade Organization’ (2015) 18 Journal of International Economic Law 3; ‘The Changing Structure of International Trade Law’ (2018) 21 Zeitschrift für europarechtliche Studien 421.
See Barrowclough, Deere Birkbeck and Christen (n 91); Carolyn Deere Birkbeck, ‘Strengthening International Cooperation to Tackle Plastic Pollution: Options for the WTO’ (2020) Global Governance Brief 1; Deere Birkbeck and others (n 134); unctad, ‘Material Substitutes to Address Marine Plastic Pollution and Support a Circular Economy: Issues and Options for Trade Policymakers’ (2021) unctad/ditc/ted/inf/2021/5; wto Committee on Trade and Environment (n 224).
Identified key elements include: improving transparency; monitoring trade trends; promoting best practices; strengthening policy coherence; identifying the scope for collective approaches; assessing capacity and technical assistance needs; and cooperating with other international processes and efforts: see wto, ‘Plastics Pollution Dialogue Advances Discussions, Eyeing MC12 Outcome’ (Informal Dialogue on Plastics Pollution and Environmentally Sustainable Plastics Trade, 21 June 2021) <
Understanding on Rules and Procedures Governing the Settlement of Disputes (dsu) Marrakesh Agreement Establishing the World Trade Organization, Annex 2, 1869 unts 401, 33 ilm 1226 (1994).
Cottier, ‘The Common Law of International Trade and the Future of the World Trade Organization’ (n 951) 12.
dsu art 4(7).
The same representatives meet as General Council, which is the wto’s highest-level decision-making body.
The US has been blocking new appointments in the past few years, so that with the expiring of terms Appellate Body membership was reduced to below the minimum of three members needed to consider appealed panel reports. As of 11 December 2019, it is no longer able to hear new appeals, which leaves the future of the wto dispute settlement system uncertain.
dsu art 18(13).
ibid art 18(14).
ibid arts 16.4 and 17.14.
ibid arts 19 and 21.
ibid art 22.
General Agreement on Tariffs and Trade (gatt 1994) Marrakesh Agreement Establishing the World Trade Organization, Annex 1A, 1867 unts 190, 33 ilm 1153 (1994).
Agreement on Technical Barriers to Trade (tbt) Marrakesh Agreement Establishing the World Trade Organization, Annex 1A, 1868 unts 120. See United States – Measures Concerning the Importation, Marketing and Sale of Tuna and Tuna Products (Tuna II (Mexico)) [2012] Appellate Body Report wt/ds381/ab/r 72–80 paras 178–99.
Agreement on the Application of Sanitary and Phytosanitary Measures (sps) Marrakesh Agreement Establishing the World Trade Organization, Annex 1A, 1867 unts 493.
Agreement on Trade-Related Aspects of Intellectual Property Rights (trips) Marrakesh Agreement Establishing the World Trade Organization, Annex 1C, as amended on 23 January 2017, 1869 unts 299, 33 ilm 1197 (1994). The law on the protection of intellectual property rights seems particularly relevant to questions related to technology transfer. While from an environmental point of view, there is an interest in the rapid dissemination of sustainable packaging designs and waste management technologies, the developer of such designs and technologies has an economic interest in controlling the use of his or her innovation in order to recoup the investment undertaken in research and development. The trips Agreement sets minimum standards on the laws used by states to protect intellectual property rights. It allows member states to exclude certain inventions from patentability, especially when the ordre public or morality is at stake, or to protect human, animal or plant life or health, as well as to avoid serious prejudice to the environment (see art 27(2)). On the trips Agreement and technology regulation, see Cottier, ‘Technology and the Law of International Trade Regulation’ (n 783).
Agreement on Subsidies and Countervailing Measures (scm) Marrakesh Agreement Establishing the World Trade Organization, Annex 1A, 1869 unts 14. wto rules on export subsidies could come into play if, for instance, mandatory take-back schemes of plastic packaging lead to an oversupply of recyclable plastics and are, as a consequence, dumped on international markets at low or negative prices in order to dispose of stock piles: see oecd, Extended Producer Responsibility (n 557) 70–71.
A tariff is defined as ‚a pecuniary tax on a product levied upon importation or exportation, i.e. upon its crossing the border into, or from, another country or jurisdiction’: Thomas Cottier and Matthias Oesch, International Trade Regulation: Law and Policy in the WTO, the European Union and Switzerland: Cases, Materials and Comments (Staempfli Publishers 2005) 577–78. gatt Article ii:2(a) explicitly excludes from the notion of tariffs charges levied on imported products equivalent to an internal tax imposed on domestic goods (so-called border tax adjustment measures): ibid 580–81. See also Peter van den Bossche and Werner Zdouc, The Law and Policy of the World Trade Organization: Text, Cases, and Materials (3rd edn, Cambridge University Press 2013) ch 6.
See Marion Panizzon, Luca Arnold and Thomas Cottier, ‘Handel und Umwelt in der wto: Entwicklungen und Perspektiven’ [2010] Umweltrecht in der Praxis 206.
See gatt 1994 art ii.
iisd and unep, Environment and Trade: A Handbook (iisd 2005) 31.
gatt 1994 art i; tbt art 2.1. cf General Agreement on Trade in Services (gats) Marrakesh Agreement Establishing the World Trade Organization, Annex 1B, 1869 unts 183, 33 ilm 1167 (1994) art ii; trips art 4.
Under the gatt regime, there are two exceptions to the mfn rule: first, states party to regional trade agreements are allowed to apply preferential tariff rates among each other: see gatt 1994 art xxiv. Second, gatt allows its members to apply preferential tariff rates to developing countries, and least developed countries in particular.
The principle of National Treatment is also reflected in other covered agreements: see tbt art 2.1; gats art xvii; trips art 3.
Korea – Taxes on Alcoholic Beverages (Korea Alcoholic Beverages) [1999] Appellate Body Report wt/ds75/ab/r, wt/ds84/ab/r para 120.
Emphasis added.
The consistency test for gatt art iii:2, first sentence, is, thus, three-tired and examines whether the measure at issue is an internal tax or other internal charge on products; whether the imported and domestic products are like products; and whether the imported products are taxed in excess of the domestic products: see Bossche and Zdouc (n 969) 356.
Emphasis added. This results in a four-tired test of consistency, examining whether the measure at issue is an internal tax or other internal charge on products; whether the imported and domestic products are directly competitive or substitutable; whether the imported and domestic products are dissimilarly taxed; and whether the dissimilar taxation is applied so as to afford protection to domestic production: see ibid 371. See also Japan – Taxes on Alcoholic Beverages (Japan Alcoholic Beverages II) [1996] Appellate Body Report wt/ds8/ab/r, wt/ds10/ab/r, wt/ds11/ab/r 24.
See Japan Alcoholic Beverages ii (n 979) 26–27.
gatt 1994 art iii:1.
Japan Alcoholic Beverages ii (n 979) 29.
China – Measures Affecting Imports of Automobile Parts (China Auto Parts) [2009] Appellate Body Report wt/ds339/ab/r, wt/ds340/ab/r, wt/ds342/ab/r para 162.
See ibid para 178.
See Japan – Customs Duties, Taxes and Labelling Practices on Imported Wines and Alcoholic Beverages (Japan Alcoholic Beverages I) [1987] gatt Panel Report L/6216, bisd 34S/83 para 5.8.
Border tax adjustments are ‘any fiscal measures which put into effect, in whole or in part, the destination principle (i.e. which enable exported products to be relieved of some or all of the tax charged in the exporting country in respect of similar domestic products sold to consumers on the home market and which enable imported products sold to consumers to be charged with some or all of the tax charged in the importing country in respect of similar domestic products)’: gatt, ‘Report of the Working Party on Border Tax Adjustments (Adopted on 2 December 1970)’ (1972) bisd 18th Supp. 97 para 4.
According to the Appellate Body, three elements must be satisfied for a violation of Article iii:4 to be established: that the imported and domestic products at issue are ‘like products’; that the measure at issue is a ‘law, regulation, or requirement affecting their internal sale, offering for sale, purchase, transportation, distribution, or use’; and that the imported products are accorded ‘less favourable’ treatment than that accorded to like domestic products: Korea – Measures Affecting Imports of Fresh, Chilled and Frozen Beef (Korea Beef) [2000] Appellate Body Report wt/ds161/ab/r, wt/ds169/ab/r para 133.
The Appellate Body however held that ‘the existence of a detrimental effect on a given imported product resulting from a measure does not necessarily imply that this measure accords less favourable treatment to imports if the detrimental effect is explained by factors or circumstances unrelated to the foreign origin of the product, such as the market share of the importer’: Dominican Republic – Measures Affecting the Importation and Internal Sale of Cigarettes (Dominican Republic Cigarettes) [2005] Appellate Body Report wt/ds302/ab/r para 96.
See Canada – Certain Measures Affecting the Automotive Industry (Canada Autos) [2000] wto Panel Report wt/ds139/r, wt/ds142/r para 10.107.
gatt 1994 Article xiii.
Such notifications must contain a general description of the restriction, its administration and the product concerned, and indicate the type of restriction, the relevant tariff line code, the national legal basis for the restriction and the wto justification for the measure concerned: Bossche and Zdouc (n 969) 482.
See ibid 354.
See India – Measures Affecting the Automotive Sector (India Autos) [2002] wto Panel Report wt/ds146/r, wt/ds175/r and Corrigendum para 7.224.
See 1973 cites; 1989 Basel Convention. See also 1987 Montreal Protocol.
Examples include US Tuna i (n 946); US Shrimp (n 677). Also in US Gasoline (n 672) the US measure, which was found in violation of gatt Article iii, did not meet the requirements for an environmental exception. However, the Appellate Body accepted a French measure prohibiting the manufacture, processing, sale and import of asbestos and asbestos-containing products to be ‘necessary to protect human life or health’ and thus to be justifiable as an exception under gatt.
Philippines – Taxes on Distilled Spirits (Philippines Distilled Spirits) [2011] Appellate Body Report wt/ds396/ab/r, cWT/ds403/ab/r para 170.
The first three criteria were defined in gatt (n 986) 102 para 18. Uniform and sufficiently detailed classification in tariff nomenclatures based on the Harmonized System (a universal classification tool administered by the World Customs Organization) was also recognized as providing a useful basis for confirming ‘likeness’ in products: see EEC – Measures on Animal Feed Proteins (EEC Animal Feed) [1978] gatt Panel Report bisd 25S/49 para 4.2; Japan Alcoholic Beverages II (n 979) 20–22; Canada – Certain Measures Concerning Periodicals (Canada Periodicals) [1997] Appellate Body Report wt/ds31/ab/r 20–21; Philippines Distilled Spirits (n 996) paras 112–83. See also Won-Mog Choi, ‘Like Products’ in International Trade Law: Towards a Consistent GATT/WTO Jurisprudence (Oxford University Press 2003); Robert E Hudec, ‘“Like Product”: The Differences in Meaning in GATT Articles I and III’ in Thomas Cottier and Petros Mavroidis (eds), Regulatory Barriers and the Principle of Non-Discrimination in World Trade Law (University of Michigan Press 2000).
Philippines Distilled Spirits (n 996) para 131.
ibid para 120.
Korea Alcoholic Beverages (n 976) para 115. See also Philippines Distilled Spirits (n 996) para 205.
See Korea Alcoholic Beverages (n 976) para 114.
ec Asbestos (n 787) para 99.
See ibid paras 96–99.
ppms have been defined in different ways. For instance, the oecd defined them as ‘the way in which products are manufactured or processed and natural resources are extracted or harvested’: oecd, ‘PPMs’ (n 947) 7. In literature, they have also been defined as the ‘sum of all activities necessary to place the product on the market’: Sebastian Puth, WTO und Umwelt: Die Produkt-Prozess-Doktrin (Duncker & Humblot 2003) 44. See also Conrad (n 947) 25–31. Product-related ppms alter the physical characteristic of the end-product. In contrast, non-product-related ppms do not leave any detectable physical traces on the product. Measures based on product-related ppms usually aim at internalizing externalities that are linked to consumption or disposal, while measures based on non-product-related ppms are often concerned with production externalities. The former category typically falls into the scope of the tbt and sps agreements (see Sections 2) and 3) below). With regard to the latter category, the regulatory situation is less obvious. See, however, Tuna II (Mexico) (n 965).
See Shahrukh Rafi Khan, ‘Trade Liberalization and the Environment: Northern and Southern Perspectives’ in Shahrukh Rafi Khan (ed), Trade and Environment: Difficult Policy Choices at the Interface (Zed Books 2002).
Two panels have used a different test based on the regulatory motivation of the measure: see United States – Measures Affecting Alcoholic and Malt Beverages [1992] gatt Panel Report ds23/R, bisd 39S/206 76–77 paras 5.74–77; United States – Taxes on Automobiles [1994] gatt Panel Report ds44/r, bisd 41S/131 101–2 paras 5.29–30. The so-called aims-and-effect test was rejected by the Appellate Body in later decisions: see Japan Alcoholic Beverages II (n 979) 27; European Communities – Regime for the Importation, Sale and Distribution of Bananas (EC Bananas III) [1997] Appellate Body Report wt/ds27/ab/r 92 para 216. However, the Appellate Body also held that in order to determine whether a measure affords protection to domestic production (as prohibited by gatt Article iii(1)), the design, architecture and structure of the measure need to be thoroughly examined: Japan Alcoholic Beverages ii (n 979) 29; Korea Alcoholic Beverages (n 976) 42–45 paras 146–54. Moreover, in ec Asbestos, the Appellate Body attributed some importance to the effect of a measure, albeit under its analysis of whether there was less favourable treatment rather than as part of the likeness test: ec Asbestos (n 787) 38 para 100. cf European Communities – Measures Affecting the Approval and Marketing of Biotech Products (EC Biotech) [2006] wto Panel Report wt/ds291/r, wt/ds292/r, wt/ds293/r 865 para 7.2514. Interestingly, the motivation or objective of a measure was also considered a relevant factor for the chapeau test (see Subsection c) below) in Brazil – Measures Affecting Imports of Retreaded Tyres (Brazil Retreaded Tyres) [2007] Appellate Body Report wt/ds332/ab/r 90 para 227. In the inconsistent jurisprudence of gatt and wto dispute settlement bodies, the aim and effect of a measure has therefore been taken into account at different stages of the analysis and with different emphasis. See Conrad (n 947) 206–22; Arwel Davies, ‘Interpreting the Chapeau of gatt Article xx in Light of the “New” Approach in Brazil – Tyres’ (2009) 43 Journal of World Trade Law 507, 534–38; Panizzon, Arnold and Cottier (n 970) 226–31.
ec Asbestos (n 787) 43 para 113.
ibid 42–46 paras 111–26.
ibid 53 para 141.
Since the Note Ad Article iii refers to products only, and not to ppms, the US Tuna i and US Tuna ii (eec) panels concluded that the US measures fell under gatt Article xi rather than Article iii. The approach has been criticized in literature: see Panizzon, Arnold and Cottier (n 970) 220–21. See also Holzer (n 947) 194.
Thomas Cottier, Elisabeth Tuerk and Marion Panizzon, ‘Handel und Umwelt im Recht der WTO: Auf dem Wege zur praktischen Konkordanz’ [2003] Zeitschrift für Umweltrecht 155, 157.
See US Gasoline (n 672) 22; US Shrimp (n 677) 44 paras 119–20; Brazil Retreaded Tyres (n 1006) 55 para 139.
Measures taken in protection against asbestos, nicotine, genetically modified organisms, hormone-treated beef, frozen fish, or pandemic risk have been treated under paragraph b: see ec Asbestos (n 787); Thailand – Restrictions on Importation of and Internal Taxes on Cigarettes (Thailand Cigarettes) [1990] gatt Panel Report ds10/r, bisd 37S/200; Dominican Republic Cigarettes (n 988); ec Biotech (n 1006); ec Hormones (n 672); Australia – Measures Affecting Importation of Salmon (Australia Salmon) [1998] Appellate Body Report wt/ds18/ab/r; Brazil Retreaded Tyres (n 1006).
European Communities – Measures Prohibiting the Importation and Marketing of Seal Products (ec Seals Products) [2014] Appellate Body Report wt/ds400/ab/r, wt/ds401/ab/r 174 para 5.289. The implications of the decision by the Appellate Body in the case are discussed in Thomas Cottier, ‘The Implications of EC – Seal Products for the Protection of Core Labour Standards in WTO Law’ in Henner Gött (ed), Labour Standards in International Economic Law (Springer International Publishing 2018); Robert Howse, Joanna Langille and Katie Sykes, ‘Pluralism in Practice: Moral Legislation and the Law of the WTO after Seal Products’ (2015) 48 Geo. Wash. Int’l L. Rev. 81; Pelin Serpin, ‘The Public Morals Exception after the WTO Seal Products Dispute: Has the Exception Swallowed the Rules’ [2016] Colum. Bus. L. Rev. 217.
In Thailand Cigarettes, the panel held that a measure imposed by a country ‘could be considered to be “necessary” in terms of Article xx(b) only if there were no alternative measure consistent with the General Agreement, or less inconsistent with it, which [that country] could reasonably be expected to employ to achieve its health policy objectives’: Thailand Cigarettes (n 1013) 21 para 75. Later reports are less restrictive in this respect. Under the wto regime, the Appellate Body notably based its analysis with respect to the necessity of a measure on a weighing of interests: see Korea Beef (n 987) 49 para 162; ec Seals Products (n 1014) 140 para 5.169. cf Brazil Retreaded Tyres (n 1006) 56 para 143. In ec Seals Products, the Appellate Body notes that scientific risk assessment methods are not a suitable tool with regard to the protection of public morals, while they play an important role in protecting animal or plant life or health: ec Seals Products (n 1014) para 5.198.
See US Taxes on Automobiles (n 1006) 111 para 5.63; US Gasoline (n 672) 14–19.
US Shrimp (n 677) 60 para 156.
On the interpretation of the chapeau, see, in particular, US Gasoline (n 672) 23; US Shrimp (n 677) 56–57 para 150; Brazil Retreaded Tyres (n 1006) 95–99 paras 240–52.
See, for instance, US Shrimp (n 677) 63–72 paras 161–76.
US Gasoline (n 672) 22–23.
US Shrimp (n 677) 53–54 paras 141–42.
ibid 51 para 133.
The ec Seals Products Appellate Body report indicates in this regard that partial bans of products cannot operate without ppm-based measures: see Cottier, ‘The Implications of EC – Seal Products’ (n 1014) 85.
US Shrimp (n 677) 63–76 paras 161–86. cf Tuna II (Mexico) (n 965) 324–31 paras 124–28.
tbt Annex 1.1. The test for determining whether a measure is a ‘technical regulation’ under the tbt is three-tiered: the measure must apply to an identifiable product or group of products; the measure must lay down product characteristics; and compliance with the product characteristics laid down in the measure must be mandatory: see Bossche and Zdouc (n 969) 857.
ec Asbestos (n 787) para 67.
tbt Annex 1.2 (emphasis added).
ibid art 2.1. While the tbt Agreement does not contain a general exceptions clause similar to gatt Article xx, the Appellate Body acknowledged that member states also have a right to regulate under the tbt, and that Article 2.1 ‘does not operate to prohibit a priori any restriction on international trade’: see ec Seals Products (n 1014) 128 para 5.124.
tbt art 2.2. In US Tuna ii (Mexico), the Appellate Body found that the US did not justify its measure as non-discriminatory because it did not demonstrate that the detrimental impact of the measure stemmed ‘exclusively from a legitimate regulatory distinction’: Tuna ii (Mexico) (n 965) 115 para 298. See also Vranes (n 946) 303–05.
Vranes (n 946) 286.
For more information, see Panagiotis Delimatsis, ‘“Relevant International Standards” and “Recognised Standardisation Bodies” Under the tbt Agreement’ in Panagiotis Delimatsis (ed), The Law, Economics and Politics of International Standardisation (Cambridge University Press 2015).
tbt arts 3, 4, 7 and 8.
See Vranes (n 946) 290–91. See also ec Asbestos (n 787) 27–28 paras 71–72; European Communities – Trade Description of Sardines (ec Sardines) [2002] Appellate Body Report wt/ds231/ab/r 49–50 para 190; ec Seals Products (n 1014) 106–14 paras 5.26–5.60.
In US Tuna ii (Mexico), the Appellate Body characterized a US non-product-related ppm-based measure as a ‘technical regulation’ within the meaning of Annex 1.1 to the tbt Agreement. The measure was found to establish the conditions for the use of a ‘dolphin-safe’ label on tuna products and to set out ‘a single and legally mandated definition of a “dolphin-safe” tuna product’ while disallowing the use of other labels on tuna products that did not satisfy this definition: Tuna ii (Mexico) (n 965) 80 para 199.
Vranes (n 946) 298–302.
iisd and unep (n 972) 39.
sps art 2 para 2–3.
ibid art 3.
ibid art 5 para 1.
ibid art 5 para 7. The application of the precautionary approach under the sps Agreement was addressed in ec Hormones (n 672) 46–48 paras 120–25; ec Biotech (n 1006) 1019–20 paras 7.3260–61; Canada – Continued Suspension of Obligations in the ec – Hormones Dispute (Canada Continued Suspension) [2008] Appellate Body Report wt/ds321/ab/r 282–306 paras 674–736. In Canada Continued Suspension, the Appellate Body pleaded for a broad policy space of member states as to risk factors and scientific evidence and took into account non-scientific policy considerations, such as the acceptable level of protection. See discussion in Alessandra Arcuri, ‘Food Safety at the WTO After “Continued Suspension”: A Paradigm Shift?’ in Antonis Antoniadis, Robert Schütze and Eleanor Spaventa (eds), The European Union and Global Emergencies: A Law and Policy Analysis (Hart Publishing 2010); Sungjoon Cho, ‘United States-Continued Suspension of Obligations in the EC-Hormones Dispute’ (2009) 103 Am. J. Int’l L. 299; Caroline E Foster, ‘Precaution, Scientific Development and Scientific Uncertainty under the WTO Agreement on Sanitary and Phytosanitary Measures’ (2009) 18 Review of European Community & International Environmental Law 50; Markus W Gehring and Marie-Claire Cordonier Segger, Precaution in World Trade Law: The Precautionary Principle and Its Implications for the World Trade Organization (cisdl 2002).
The protocol provides that lack of scientific certainty ‘shall not prevent [the party] from taking a decision […] with regard to the import of the living modified organism in question […] in order to avoid or minimize such potential adverse effects’: 2000 Cartagena Protocol art 10 para 6.
See PJ Kuyper, ‘The Law of GATT as a Special Field of International Law: Ignorance, Further Refinement or Self-Contained System of International Law?’ (1994) 25 Netherlands Yearbook of International Law 227, 252.
According to the ilc, ‘[t]here is no doubt that the WTO dispute settlement system is a self-contained regime in the sense that article 23 of the Dispute Settlement Understanding (dsu) excludes unilateral determinations of breach or countermeasures outside the “specific subsystem” of the wto-regime’ (emphasis added). At the same time, the ilc held that no regime is self-contained in the sense that it is to be regarded as isolated from general international law. General international law always provides the normative background and a fall back regime: ilc, ‘Fragmentation Report’ (n 653) 100 paras 192–93. See also Marina Foltea, International Organizations in WTO Dispute Settlement: How Much Institutional Sensitivity? (Cambridge University Press 2012) ch 3; Anja Lindroos and Michael Mehling, ‘Dispelling the Chimera of “Self-Contained Regimes” International Law and the WTO’ (2005) 16 European Journal of International Law 857; Bruno Simma, ‘Of Planets and the Universe: Self-Contained Regimes in International Law’ (2006) 17 European Journal of International Law 483, 519–23; JHH Weiler, ‘The Rule of Lawyers and the Ethos of Diplomats Reflections on the Internal and External Legitimacy of WTO Dispute Settlement’ (2001) 35 Journal of World Trade 191.
US Gasoline (n 672) 17.
Korea – Measures Affecting Government Procurement (Korea Procurement) [2000] wto Panel Report wt/ds163/r 181 para 7.96.
US Shrimp (n 677) 62 para 158; ilc, ‘Fragmentation Report’ (n 653) 71 para 134.
See Agenda 21 (n 450) para 17.118; Johannesburg Plan of Implementation para 154; unga Res. 66/288 (2012), annex (n 511) paras 26, 58(h) and 78. More generally, the integration of economic and environmental aspects is demanded under the concept of sustainable development such as reflected in Rio Principle 4. The principle reads as follows: ‘In order to achieve sustainable development, environmental protection shall constitute an integral part of the development process and cannot be considered in isolation from it’. See also Edith Brown Weiss, ‘Environment and Trade as Partners in Sustainable Development: A Commentary’ [1992] American Journal of International Law 728.
See Marrakesh Agreement Preamble; wto, ‘Ministerial Decision on Trade and Environment’ (1994); US Gasoline (n 672) 30.
US Gasoline (n 672) 30.
gatt 1994 art xx.
For an overview, see ilc, ‘Fragmentation Report’ (n 653) 138–43 paras 272–82.
Pauwelyn, Conflict of Norms (n 668) 323. See also Boyle, ‘Relationship between International Environmental Law and Other Branches of International Law’ (n 668) 136–38; ilc, ‘Fragmentation Report’ (n 653) 83 para 154. cf Perrez, ‘The Mutual Supportiveness of Trade and Environment’ (n 944) 27.
1982 unclos art 311(2).
ibid art 311(3). See Boyle, ‘Further Development of the 1982 Convention on the Law of the Sea: Mechanisms for Change’ (n 948) 60; ilc, ‘Fragmentation Report’ (n 653) 141–42 paras 278–80.
See Wolfrum and Matz (n 939) 6.
See US Shrimp (n 677) 48–51 paras 130–34.
See ilc, ‘Fragmentation Report’ (n 653) 88–89 para 167. For more information on potential conflicts between wto law and other rules of international law see Vranes (n 946) 68–92.
According to dsu Article 11, ‘a panel should […] make such other findings as will assist the dsb in making the recommendations or in giving the rulings provided for in the covered agreements’. The rule has been referred to as an ‘implied powers’ clause that ‘should be interpreted broadly so that the panels and Appellate Body can decide all aspects of a dispute’: Thomas J Schoenbaum, ‘WTO Dispute Settlement: Praise and Suggestions for Reform’ (1998) 47 The International and Comparative Law Quarterly 647, 653. See also Myers (n 944) 72; Joost Pauwelyn, ‘The Role of Public International Law in the WTO: How Far Can We Go?’ (2001) 95 American Journal of International Law 535, 557.
cf US Tuna ii (eec) (n 946) 19 para 3.38 and 50–51 paras 5.18–5.20; US Shrimp (n 677) for instance 48 para 130; ec Biotech (n 1006) 334 para 7.70.
Panizzon, Arnold and Cottier (n 970) 210–12. See also, in general, Foltea (n 1043).
See, for instance, iisd and unep (n 972) 65.
Implementing measures and their consistency with wto law will be discussed in Chapter 2.3 below.
Thomas Cottier and Zaker Ahmad (eds), The Prospects of Common Concern of Humankind in International Law (Cambridge University Press 2021).
Thomas Cottier, ‘The Principle of Common Concern of Humankind’ in Thomas Cottier and Zaker Ahmad (eds), The Prospects of Common Concern of Humankind in International Law (Cambridge University Press 2021) 25–26.
ibid 3.
Dinah Shelton, ‘Common Concern of Humanity’ (2009) 5 Iustum Aequum Salutare 33, 34. Common concerns of humankind potentially affect all of humanity and the international system as a whole in terms of stability and viability, thus bearing the risk to threaten international stability, peace and welfare: see Cottier, ‘The Principle of Common Concern’ (n 1064) 39. It was also suggested that ‘issues of common concern are linked to the recognition of erga omnes obligations and the formation of collective compliance institutions’: Shelton 34.
Cottier, ‘The Principle of Common Concern’ (n 1064) 9.
The concept implies a ‘shift of classical international law from coexistence to cooperation, and ultimately perhaps even to integration and legal harmonisation in specific regulatory areas’: see ibid 24.
See Schäli (n 20).
Specifically the chapeau of gatt 1994 Article xx. For more information, see Section 2.3.B below.
In the US – Tuna i case the measure adopted by the US did not pass the necessity test under gatt Article xx because the US was not able to demonstrate that ‘it had exhausted all options reasonably available to it to pursue its […] objectives through measures consistent with the General Agreement, in particular through the negotiation of international cooperative arrangements’: US Tuna i (n 946) 36 para 5.28.
[t]rade policy measures for environmental purposes should not constitute a means of arbitrary or unjustifiable discrimination or a disguised restriction on international trade. Unilateral actions to deal with environmental challenges outside the jurisdiction of the importing country should be avoided. Environmental measures addressing transboundary or global environmental problems should, as far as possible, be based on an international consensus.
environmental policies should deal with the root causes of environmental degradation, thus preventing environmental measures from resulting in unnecessary restrictions to trade. Trade policy measures for environmental purposes should not constitute a means of arbitrary or unjustifiable discrimination or a disguised restriction on international trade. Unilateral actions to deal with environmental challenges outside the jurisdiction of the importing country should be avoided. Environmental measures addressing international environmental problems should, as far as possible, be based on an international consensus. Domestic measures targeted to achieve certain environmental objectives may need trade measures to render them effective. Should trade policy measures be found necessary for the enforcement of environmental policies, certain principles and rules should apply:
Agenda 21 (n 450) para 17.118.
See Vranes (n 946) 176–77. On the justification of unilateral actions in general international law, see ibid 176–83.
See Myers (n 944) 68–69.
See United States – Import Prohibition of Certain Shrimp and Shrimp Products, Recourse to Article 215 of the DSU by Malaysia [2001] Appellate Body Report wt/ds58/ab/rw 42–43 para 134.
See Boyle, ‘Further Development of the 1982 Convention on the Law of the Sea: Mechanisms for Change’ (n 948) 59.
Shelton (n 1066) 34.
Trade ‘sanctions’ bear the risk of a tit-for-tat scenario in which targeted nations respond with economic countermeasures and potentially prejudice the cooperative spirit among nations (such as in the 2018 trade war between the US and China): see Myers (n 944) 70. On the limitations imposed to the concept of common concern by the disciplines of wto law, see Thomas Cottier and Sofya Matteotti-Berkutova, ‘International Environmental Law and the Evolving Concept of “Common Concern of Mankind”’ in Thomas Cottier, Olga Nartova and Sadeq Z Bigdeli (eds), International Trade Regulation and the Mitigation of Climate Change (Cambridge University Press 2009) 44–46.
Such measures are subject to the principle of proportionality and must not exceed of what is required to achieve compensation for damage and losses incurred.
ilc, ‘2001 ILC Draft Articles on State Responsibility’ (n 842) art 48(1).
The Appellate Body report in the US – Shrimp case serves as a prime example in this regard: in order to determine the meaning of the term ‘natural resources’ within the context of gatt Article xx – a meaning that it held was ‘by definition evolutionary’ – the Appellate Body referred to the 1992 Rio Declaration, the cbd, unclos and a number of other instruments. Based on this reference, it concluded that the term included both living and non-living resources: US Shrimp (n 677) 48–50 paras 130–31.
cbd Secretariat (n 375) 16.
Convention on the Conservation of Migratory Species of Wild Animals (cms) (adopted on 23 June 1979, entered into force on 1 November 1983) 1651 unts 333, 19 ilm 15 (1980).
As of September 2021, the cbd has 196 parties, excluding the United States.
1992 cbd art 1.
ibid art 2.
For a description of the ecosystem approach and a number of guiding principles related to it, see cbd cop Decision v/6 (2000), ‘Ecosystem Approach’ unep/cbd/cop/5/23, 103.
2000 Cartagena Protocol.
Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the Convention on Biological Diversity (2010 Nagoya Protocol) (adopted on 29 October 2010, entered into force on 12 October 1914).
The Strategic Plan for Biodiversity 2011–2020 was adopted in 2010 and includes a number of strategic goals, as well as the Aichi Biodiversity Targets. See cbd cop Decision x/2 (2010), ‘The Strategic Plan for Biodiversity 2011–2020 and the Aichi Biodiversity Targets’ unep/cbd/cop/dec/x/2.
In cop decision x/29, parties noted an urgent need to further assess and monitor the impacts and risks of human activities on marine and coastal biodiversity and requested the executive secretary to mainstream biodiversity concerns into assessment work undertaken by other competent organizations, including the UN Regular Process for the Global Reporting and Assessment of the State of the Marine Environment, Including Socioeconomic Aspects (‘Regular Process’ <
See Section 2.1.A.i.4) above.
stap (n 510).
cbd Secretariat and stap (n 510).
See cbd, ‘Expert Workshop Report 2014’ (n 510).
cbd Secretariat (n 375).
cbd cop Decision xiii/10 (2016), ‘Addressing Impacts of Marine Debris and Anthropogenic Underwater Noise on Marine and Coastal Biodiversity’ cbd/cop/dec/xiii/10 Annex.
ibid Annex para 8(b).
unep, ‘Marine Litter Legislation: A Toolkit for Policymakers’ (n 509).
See Chapter 2.3 below. Overlaps in the scope, objective and purpose between the cbd and unclos go well beyond concerns related to plastic pollution. Potential areas of conflict particularly include questions related to the conservation and sustainable use of marine living resources, the scope of the ecosystem approach, the establishment of marine protected areas and access and benefit-sharing with regard to marine genetic resources. For more information, see Wolfrum and Matz (n 939) 15–31.
cbd cop Decision 14/10 (2018), ‘Other Matters Related to Marine and Coastal Biodiversity’ cbd/cop/dec/14/10.
See cbd, ‘Report of the Open-Ended Working Group on the Post-2020 Global Biodiversity Framework on Its Third Meeting (Part I)’ (2021) cbd/w2020/3/4.
cms cop Resolution 10.4 (2011), ‘Marine Debris’ unep/cms/Resolution 10.4.
cms, ‘Report I: Migratory Species, Marine Debris and Its Management’ (2014) unep/cms/cop11/Inf.27; ‘Report ii: Marine Debris and Commercial Marine Vessel Best Practice’ (2014) unep/cms/cop11/Inf.28; ‘Report iii: Marine Debris Public Awareness and Education Campaigns’ (2014) unep/cms/cop11/Inf.29.
cms cop Resolution 11.30 (2014), ‘Management of Marine Debris’ unep/cms/Resolution 11.30.
See cms cop Resolution 12.20 (2017), ‘Management of Marine Debris’ unep/cms/Resolution 12.20; cms cop Decisions 13.122 to 13.125 (2020), ‘Impacts of Plastic Pollution on Aquatic, Terrestrial and Avian Species’.
See cms and unep, Impacts of Plastic Pollution on Freshwater Aquatic, Terrestrial and Avian Migratory Species in the Asia and Pacific Region (2021).
See Moritaka Hayashi, ‘The 1995 UN Fish Stocks Agreement and the Law of the Sea’ in Davor Vidas and Willy Østreng (eds), Order for the Oceans at the Turn of the Century (Kluwer Law International 1999) 38.
1995 Fish Stock Agreement arts 5–6.
The fao plays an important role in the development of fisheries law. On aldfg, see fao and unep, ‘Abandoned, Lost or Otherwise Discarded Fishing Gear’ (2009) fao Fisheries and Aquaculture Technical Paper 523 unep Regional Seas Reports and Studies 185; fao, International Guidelines on Bycatch Management and Reduction of Discards (2011); ‘Abandoned, Lost or Otherwise Discarded Gillnets and Trammel Nets: Methods to Estimate Ghost Fishing Mortality, and the Status of Regional Monitoring and Management’ (2016) fao Fisheries and Aquaculture Technical Paper 600; ‘Report of the Expert Consultation on the Marking of Fishing Gear, Rome, Italy, 4–7 April 2016’ (2016) fao Fisheries and Aquaculture Report R1157. See also iwc Res 2018-3, ‘Resolution on Ghost Gear Entanglement Among Cetaceans’.
South China Sea Arbitration (n 584) 380–84 paras 956–64.
Convention on Wetlands of International Importance especially as Waterfowl Habitat (1971 Ramsar Convention) (adopted on 2 February 1971, entered into force on 21 December 1975, as last amended on 28 May 1987) 996 unts 245, 11 ilm 963 (1972).
More than 2,400 sites are included in the list, covering a surface area of more than 2.5 million km2. The aim of the Ramsar List is mainly the recording of relevant data, as well as the exchange of information among the parties or between the parties and the secretariat. Where a site runs the risk of undergoing a change in its ecological character brought about by human action, technical assistance is provided.
The same is true for sites protected under the Convention Concerning the Protection of the World Cultural and Natural Heritage (World Heritage Convention) (adopted on 23 November 19, entered into force on 15 December 1975) 1037 unts 151, 11 ilm 1358 (1972).
International Convention for the Regulation of Whaling (1946 icrw) (adopted on 2 December 1946, entered into force on 10 November 1948) 161 unts 72.
iwc, ‘Report of the Workshop on Welfare Issues Associated with the Entanglement of Large Whales’ (2010) iwc/62/15; ‘Report of Second iwc Workshop on Welfare Issues Associated with the Entanglement of Large Whales With a Focus on Entanglement Response’ (2011) iwc/64/wkm&awi rep1; ‘Report of the Third Workshop on Large Whale Entanglement Issues, Provincetown, MA, USA, 21–23 April 2015’ (2015) iwc/66/wk-i-Rep01. iwc also manages an entanglement response capacity building programme and coordinates an Expert Advisory Panel on Entanglement Response.
iwc, ‘Report of the 2013 iwc Scientific Committee Workshop on Marine Debris’ (2013) sc/65a/Rep06.
iwc, ‘Report of the IWC Workshop on Mitigation and Management of the Threats Posed by Marine Debris to Cetaceans’ (2014) iwc/65/CCRep04.
iwc, ‘Report of IWC Workshop on Marine Debris: The Way Forward’ (2019) sc/68b/rep/03.
iwc, ‘Understanding the Threat to Cetaceans from Microplastics and pahs – Pollution 2020’ <
1989 Basel Convention.
1998 Rotterdam pic Convention.
2001 Stockholm pops Convention.
Minamata Convention on Mercury (adopted on 10 October 2013, entered into force on 16 August 2017).
In February 2010, simultaneous Extraordinary Meetings of the Conferences of the Parties (ExCOPs) to the three conventions were held in Bali, Indonesia, at the margins of the special session of the unep Governing Council. The cops of the three conventions took identical decisions on cooperation and coordination regarding joint activities, joint managerial functions, joint services, synchronization of budget cycles, joint audits, and review arrangements: Omnibus decisions bc.Ex-1/1, rc.Ex-1/1 and sc.Ex-1/1. The synergies process was further strengthened by biennial cop decisions in 2011, 2013, 2015, 2017 and 2019.
1989 Basel Convention art 4(2).
See Basel Convention cop decision bc 10/2 (2011), ‘Strategic Framework for the Implementation of the Basel Convention for 2012–2021’ Annex para 3(a).
1989 Basel Convention arts 6 and 7.
ibid art 4(1) and (5–6).
The ban was originally agreed on in cop Decision ii/12 in 1994. At its third meeting (1995), the cop decided to amend the convention accordingly, by introducing a new preambular paragraph ‘[r]ecognizing that transboundary movements of hazardous wastes, especially to developing countries, have a high risk of not constituting an environmentally sound management of hazardous wastes’: bc-iii/1. The Ban Amendment also includes Article 4A, which obliges oecd parties, parties to the European Union and Lichtenstein to prohibit all transboundary movements to all other parties to the convention of hazardous wastes that are intended for final disposal, and to phase out transboundary movements to these countries of hazardous wastes that are exported for other purposes, including reuse, recycling or recovery operations.
1989 Basel Convention art 11(1).
Basel Convention Annex ix item B3010 before amendment by cop19.
For the purposes of the Basel Convention, hazardous wastes are wastes that belong to specific categories (as defined in Annex i of the convention), possessing certain characteristics (as defined in Annex iii), such as toxicity or ecotoxicity. Plastics containing specific flame retardants, such as polybrominated biphenyls, would fall into this category. Substances or wastes are considered toxic if their inhalation or ingestion may involve delayed or chronic effects, including carcinogenicity. They are considered ecotoxic if their release ‘may present immediate or delayed adverse impacts to the environment by means of bioaccumulation and/or toxic effects upon biotic systems’: see codes H11 and H12, respectively, according to Annex iii to the 1989 Basel Convention. See also Basel Convention, ‘Approach to Basel Convention Hazard Characteristic H11: Characterization of Chronic or Delayed Toxicity’ (2004) unep/chw. 7/11/Add.2/Rev. 1; ‘Interim Guidelines on the Hazardous Characteristics H12-Ecotoxic’ (2003). Categories of ‘other wastes’ are listed in Annex ii, such as wastes collected from households.
Basel Convention cop decision bc 14/12 (2019), ‘Amendments to Annexes ii, viii and ix to the Basel Convention’ unep/chw.14/12; iisd, ‘Summary of the Meetings of the Conferences of the Parties to the Basel, Rotterdam and Stockholm Conventions: 29 April – 10 May 2019’ (2019) 15 Earth Negotiations Bulletin: cops final 18 <
See Dominique Mosbergen, ‘How America Is Sabotaging The Global War On Plastic Waste’ (HuffPost, 54:41 400ad) <
See Basel Convention Secretariat, ‘Report on Possible Options Available under the Basel Convention to Further Address Marine Plastic Litter and Microplastics’ (2018) unep/chw/oewg.11/inf/22 para 28. For a critical view on the suitability of the Basel Convention to more properly regulate plastics and plastic pollution from land-based sources, see Nils Simon and Maro Luisa Schulte, ‘Stopping Global Plastic Pollution: The Case for an International Convention’ (Heinrich Böll Stiftung 2017) Ecology Publication Series 43 26–29. See also European Commission, ‘Green Paper on a European Strategy on Plastic Waste in the Environment’ (2013) com(2013) 123 final 19.
Basel Convention, ‘Basel Convention Technical Guidelines on Wastes Collected from Households (Y46)’ (1994); ‘Basel Convention Technical Guidelines on Incineration on Land (D10)’ (1995); ‘Basel Convention Technical Guidelines on Specially Engineered Landfill (D5)’ (1995); ‘Revised Technical Guidelines for the Environmentally Sound Management of Used and Waste Pneumatic Tyres’ (2011) unep/chw.10/6/Add.1/Rev.1; ‘General Technical Guidelines on the Environmentally Sound Management of Wastes of Wastes Consisting of, Containing or Contaminated with Persistent Organic Pollutants’ (2015) unep/chw.12/5/Add.2/Rev.1.
Basel Convention, ‘Technical Guidelines for the Identification and Environmentally Sound Management of Plastic Wastes and for Their Disposal’ (2002) unep/chw.6/21.
iisd, ‘Summary of cop bc/rc/sc 2019’ (n 1135) 18.
At the bc cop 13, which took place from 24 April to 5 May 2017, new areas of work were added to the work programme of the oewg. The new areas of work notably include waste containing nanomaterials, as well as marine plastic litter and microplastics. In view of the assessment work under the auspices of UN Environment in this field and any relevant decision by the unea at its third meeting, the oewg was tasked to ‘[c]onsider relevant options available under the Convention to further address marine plastic litter and micro-plastics […] and develop a proposal for possible further actions’: Basel Convention cop decision bc 13/17 (2017), ‘Work Programme and Operations of the Open-Ended Working Group for the Biennium 2018–2019’ unep/chw.13/17 Annex; Basel Convention, ‘Report of COP to the Basel Convention on the Work of Its 13th Meeting’ (2017) unep/chw.13/28 81.
Basel Convention Secretariat, ‘Marine Plastic Litter and Microplastics’ (2019) unep/chw.14/11 paras 25–30.
See Basel Convention cop decision bc 13/14 (2017), ‘Partnership on Household Waste’ unep/chw.13/14.
See Basel Convention Secretariat, ‘Marine Plastic Litter and Microplastics’ (n 1142) paras 31–33. See also Basel Convention oewg decision 11/8, ‘Draft Elements as a Basis for a Decision on Marine Plastic Litter’ Annex; Basel Convention Secretariat, ‘Report on Possible Options Available under the Basel Convention to Further Address Marine Plastic Litter and Microplastics’ (n 1137).
See Basel Convention cop decision bc 13/11 (2017), ‘Technical Assistance’ unep/chw.13/11 para 14; Basel Convention Secretariat, ‘Basel Convention Regional and Coordinating Centres’ (2019) unep/chw.14/17 para 23(2).
Status of ratification in September 2021.
Protocol on Liability and Compensation for Damage Resulting from Transboundary Movements of Hazardous Wastes and Their Disposal (1999 Basel Protocol) (adopted on 10 December 1999, not yet in force) UN Doc. unep/chw.1/wg/1/9/2. The protocol will enter into force after the ratification by twenty states. Twelve instruments of ratification have been deposited so far (as of September 2021).
ibid art 3(1).
ibid arts 4 and 5.
See Alessandro Fodella, ‘Mechanism for Promoting Implementation and Compliance with the 1989 Basel Convention on the Transboundary Movements of Hazardous Wastes and Their Disposal’ in Tullio Treves and others (eds), Non-Compliance Procedures and Mechanisms and the Effectiveness of International Environmental Agreements (tmc Asser Press 2009) 33. See also Basel Convention, ‘The Basel Convention Mechanism for Promoting Implementation and Compliance’ (2006); ‘The Basel Convention Mechanism for Promoting Implementation and Compliance: Celebrating a Decade of Assistance to Parties’ (2011).
As of September 2021.
2001 Stockholm pops Convention art 1.
ibid art 3(1). Annex B allows for the registration of acceptable purposes or specific exemptions for the production and use of the listed pops. The import and export of chemicals listed in Annex A or B can take place under specific restrictive conditions, as set out in Article 3(2).
ibid arts 5–6. Further obligations under the convention relate to the development of implementation plans (art 7), information exchange (art 9), public information, awareness and education (art 10), research, development and monitoring (art 11), technical assistance (art 12), financial resources and mechanisms (art 13), and reporting (art 15).
Stockholm Convention, ‘Guidance on Best Available Techniques and Best Environmental Practices for the Recycling and Disposal of Articles Containing Polybrominated Diphenyl Ethers (pbdes) Listed under the Stockholm Convention on Persistent Organic Pollutants’ 17–19.
Decabromodiphenyl ether and short-chain chlorinated paraffins (which are widely used in plastics as additive flame retardant or fillers) as well as perfluorooctanoic acid (as used in non-stick cookware and other applications) are chemicals that were recently added to Stockholm Convention Annex A.
WV Titow, PVC Technology (4th edn, Elsevier Applied Science Publishers 1984) 10; Ren-De Sun and others, ‘Suppressing Effect of CaCO3 on the Dioxins Emission from Poly(Vinyl Chloride) (PVC) Incineration’ (2003) 79 Polymer Degradation and Stability 253, 253.
2001 Stockholm pops Convention Annex C Part v para A(f). See also Stockholm Convention, ‘Guidelines on Best Available Techniques and Provisional Guidance on Best Environmental Practices Relevant to Article 5 and Annex C of the Stockholm Convention on Persistent Organic Pollutants: Open Burning of Waste, Including Burning of Landfill Sites’ (2008) 9–14.
See, for instance, Food Packaging Forum, ‘UV-328 Qualifies for Screening as POP’ (22 January 2021) <
unep, ‘SAICM: Overview’ (International Chemicals Management) <
Lourens JJ Meijer and others, ‘More Than 1000 Rivers Account for 80% of Global Riverine Plastic Emissions into the Ocean’ (2021) 7 Science Advances eaaz5803.
Historically, shared water resources have played a significant role in the development of these principles and of general international environmental law: see Lac Lanoux Arbitration (n 814); Pulp Mills Judgment (n 544). See also Laurence Boisson de Chazournes and Mara Tignino, ‘Introduction’ in Laurence Boisson de Chazournes and Mara Tignino (eds), International Water Law (Edward Elgar 2015); Laurence Boisson de Chazournes, Fresh Water in International Law (Oxford University Press 2013) ch 1; Owen McIntyre, Environmental Protection of International Watercourses Under International Law (Routledge 2016) ch 3–4; Salman MA Salman, ‘The Helsinki Rules, the UN Watercourses Convention and the Berlin Rules: Perspectives on International Water Law’ (2007) 23 International Journal of Water Resources Development 625.
1997 Watercourses Convention. While the convention applies only to international watercourses, the concept of a watercourse is a broad one. It refers to ‘a system of surface waters and groundwaters constituting by virtue of their physical relationship a unitary whole and normally flowing into a common terminus’: ibid art 2(a).
Convention on the Protection and Use of Transboundary Watercourses and International Lakes (unece Water Convention) (adopted on 17 March 1992, entered into force on 6 October 1996, as amended in 1999 by the Protocol on Water and Health) 1936 unts 269, 31 ilm 1312 (1992). In 2003, the convention’s Articles 25 and 26 were amended so as to enable states outside the unece region to accede to it. The amendment entered into force in 2015. Hence, the convention has universal scope. For more information, see unece Watercourse Convention, ‘Guide to Implementing The Water Convention’ (United Nations 2013) ece/mp.wat/39; ‘The Global Opening of the 1992 Water Convention’ (United Nations 2016) ece/mp.wat/43/Rev.1.
1997 Watercourses Convention art 21(3)(c).
e.g. Convention for the Protection of the Rhine Against Chemical Pollution (adopted on 3 December 1976, entered into force on 1 February 1979) 1124 unts 375; Agreement Between Canada and the United States of America on Great Lakes Water Quality (adopted and entered into force on 22 November 1978) 1153 unts 187.
Attila Tanzi and Maurizio Arcari, The United Nations Convention on the Law of International Watercourses:A Framework for Sharing (Kluwer Law International 2001) 278. See also Aldo Chircop, ‘Marine Pollution from Land-Based Activities: Legal Regimes and Management Frameworks’ in Davor Vidas and Willy Østreng (eds), Order for the Oceans at the Turn of the Century (Kluwer Law International 1999) 181.
unece Water Convention art 2(6).
ibid art 9(2)(4).
See Section 2.1.B.ii.3)a) above.
See imo, ‘Implications of the United Nations Convention on the Law of the Sea for the International Maritime Organization’ (1987) leg/misc/1, as cited in Nordquist, Rosenne and Yankov (n 585) 426. See also imo, leg/misc/3/Rev.1 (2003); leg/misc/8 (2014).
imo Marine Environment Protection Committee Resolution mepc.310(73), ‘Action Plan to Address Marine Plastic Litter from Ships’ (2018) mepc 73/19/Add.1 Annex 10.
Brydson (n 38) 10.
ciel, ‘Feedstocks’ (n 83) 2; ciel, ‘Driving the Plastics Boom’ (n 83).
See ciel, ‘Driving the Plastics Boom’ (n 83); ciel, ‘Untested Assumptions in the Plastics Boom’ (n 129).
2015 Paris Agreement.
ciel, ‘Untested Assumptions in the Plastics Boom’ (n 129).
Deere Birkbeck (n 952) 7.
France, ‘Décret N° 2016-1170 Du 30 Août 2016 Relatif Aux Modalités de Mise En Œuvre de La Limitation Des Gobelets, Verres et Assiettes Jetables En Matière Plastique’.
In the legal assessment for unea-3, UN Environment has been identified as a strong candidate for the institutional home of a new global architecture on marine plastic litter and microplastics: unep, ‘UNEA-3 Legal Report – Summary for Policy Makers’ (n 509) 11.
1982 unclos art 207(4). The article also provides that such rules and standards shall be re-examined from time to time.
cf conditions as set out in 1982 unclos art 311.
See Section 2.1.B.ii.3)f) above.
1982 unclos art 123.
Other examples for regional cooperation around enclosed or semi-enclosed seas include the Black Sea, Caspian Sea, and Mediterranean schemes, as well as the Red Sea and Gulf of Aden and ropme Sea (Persian/Arabian Gulf and Gulf of Oman) regimes.
Examples of coastline-state cooperation schemes under UN Environment include the North-East and South-East Pacific, West and Central Africa, and Western Indian Ocean regimes. The Pacific region and Wider Caribbean region are examples for regional cooperation mainly between island states.
For more information on the interplay between the UN Environment Regional Seas Programme, lmes and other governing bodies, see Julien Rochette and others, ‘Regional Oceans Governance Mechanisms: A Review’ (2015) 60 Marine Policy 9; unep, ‘Regional Oceans Governance: Making Regional Seas Programmes, Regional Fishery Bodies and Large Marine Ecosystem Mechanisms Work Better Together’ (unep 2016) unep Regional Seas Reports and Studies No 197.
The Caspian regional programme is the youngest under unep administration. Parties to the Teheran Convention decided to entrust UN Environment with the task at their fifth meeting in 2014. The Teheran Convention covers four protocols, including one on land-based sources and one dealing with environmental impact assessment.
These include the Black Sea Commission bsc (Black Sea Region); the Secretariat of the Pacific Regional Environment Programme sprep (Pacific Region); the Regional Organization for the Conservation of the Environment of the Red Sea and Gulf of Aden persga (Red Sea and Gulf of Aden); the Kuwait Regional Organization for the Protection of the Marine Environment ropme (ropme Sea Area); the South Asia Co-operative Environment Programme sacep (South-Asian Seas); and the Permanent Commission for the South Pacific cpps (South-East Pacific Region).
See VanderZwaag and Powers (n 462) 443.
1995 Barcelona Convention; Convention for Co-operation in the Protection and Development of the Marine and Coastal Environment of the West and Central African Region (1981 Abidjan Convention) (adopted in March 1981, entered into force on 5 August 1984); Convention for the Protection, Management and Development of the Marine and Coastal Environment of the Eastern African Region (1985 Nairobi Convention) (adopted on 21 June 1985, entered into force on 30 May 1996, to be replaced by the 2010 Nairobi Convention); Amended Nairobi Convention for the Protection, Management and Development of the Marine and Coastal Environment of the Western Indian Ocean (2010 Nairobi Convention) (adopted on 31 March 2010, not yet in force); Convention for the Protection and Development of the Marine Environment of the Wider Caribbean Region (1983 Cartagena Convention) (adopted on 24 March 1983, entered into force on 11 October 1986) 1506 unts 157, tias 11085; Convention on the Protection of the Black Sea Against Pollution (1992 Bucharest Convention) (adopted on 21 April 1992, entered into force on 15 January 1994); Convention for Cooperation in the Protection and Sustainable Development of the Marine and Coastal Environment of The Northeast Pacific (2002 Antigua Convention) (adopted on 18 February 2002, not yet in force); Convention for the Protection of the Natural Resources and Environment of the South Pacific Region (1986 Noumea Convention) (adopted on 24 November 1986, entered into force on 22 August 1990); Regional Convention for the Conservation of the Red Sea and Gulf of Aden Environment (1982 Jeddah Convention) (adopted in February 1982, entered into force on 20 August 1985); Kuwait Regional Convention for Cooperation on the Protection of the Marine Environment from Pollution (1978 Kuwait Convention) (adopted on 24 April 1978, entered into force on 1 July 1979); Convention for the Protection of the Marine Environment and Coastal Area of the South-East Pacific (1981 Lima Convention) (adopted on 12 November 1981, entered into force on 19 May 1986).
Caspian Sea Region: Protocol for the Protection of the Caspian Sea Against Pollution from Land-Based Sources and Activities to the 2003 Tehran Convention (2012 Moscow Protocol) (adopted on 12 December 2012, not yet in force). Mediterranean Region: Protocol for the Protection of the Mediterranean Sea against Pollution from Land-Based Sources (1980 Athens Protocol) (signed on 17 May 1980, entered into force on 17 June 1983) 19 ilm 869 (1980); 1996 Syracuse Protocol. West and Central Africa Region: Additional Protocol to the Abidjan Convention Concerning Cooperation in the Protection and Development of Marine and Coastal Environment from Land-Based Sources and Activities in the Western, Central and Southern African Region (2012 Abidjan Protocol) (adopted on 22 June 2012, not yet in force). Western Indian Ocean Region: Protocol for the Protection of the Marine and Coastal Environment of the Western Indian Ocean from Land-Based Sources and Activities (2010 Nairobi Protocol) (adopted on 31 March 2010; not yet in force). Wider Caribbean Region: Protocol Concerning Pollution from Land-Based Sources and Activities to the Convention for the Protection and Development of the Marine Environment of the Wider Caribbean Region (1999 Aruba Protocol) (adopted on 6 October 1999, entered into force on 13 August 2010). Black Sea Region: Protocol on Protection of the Black Sea Marine Environment Against Pollution from Land Based Sources (1992 Bucharest Protocol) (adopted on 21 April 1992, entered into force on 15 January 1994) 32 ilm 1122 (1993); Protocol on the Protection of the Marine Environment of the Black Sea from Land-Based Sources and Activities (2009 Sofia Protocol) (originally adopted in Bucharest in 1992, fully revised in 2009, revised version not yet in force). Red Sea and Gulf of Aden: Protocol concerning the Protection of the Marine Environment from Land-Based Activities in the Red Sea and Gulf of Aden (2005 Jeddah Protocol) (adopted on 25 September 2005, not yet in force). ropme Sea Area (Kuwait): Protocol for the Protection of the Marine Environment against Pollution from Land-Based Sources (1990 Kuwait Protocol) (adopted in 1990, entered into force on 2 January 1993). South East Pacific Region: Protocol for the Protection of the South-East Pacific against Pollution from Land-based Sources (1983 Quito Protocol) (signed on 22 July 1983, entered into force in 1986).
Convention for the Prevention of Marine Pollution by Dumping from Ships and Aircraft (1972 Oslo Convention) (adopted on 15 February 1972, entered into force on 7 April 1974, later replaced by the 1992 ospar Convention) 932 unts 3, 11 ilm 262 (1972); Convention for the Prevention of Marine Pollution from Land-Based Sources (1974 Paris Convention) (adopted on 4 June 1974, entered into force on 6 May 1978, later replaced by the 1992 ospar Convention); Convention on the Protection of the Marine Environment of the Baltic Sea Area (1974 Helsinki Convention) (adopted on 24 March 1974, entered into force on 3 May 1980, later replaced by the 1992 Helsinki Convention).
1992 ospar Convention.
The ospar Commission and its predecessors have adopted a substantive number of recommendations, decisions and other documents providing for additional guidance on the implementation of the convention. These include, for instance: the ospar Recommendation 2016/01 on the reduction of marine litter through the implementation of fishing for litter initiatives; the 2014 Regional Action Plan for Prevention and Management of Marine Litter in the North-East Atlantic and the 2015 Guidelines for Monitoring and Assessment of plastic particles in stomachs of Fulmars in the North Sea area.
For more information on the ospar regime, see Louise Angélique de La Fayette, ‘The ospar Convention Comes into Force: Continuity and Progress’ (1999) 14 The International Journal of Marine and Coastal Law 247; Peter Heslenfeld and E Lisette Enserink, ‘OSPAR Ecological Quality Objectives: The Utility of Health Indicators for the North Sea’ (2008) 65 ices Journal of Marine Science: Journal du Conseil 1392; David Johnson, ‘Environmental Indicators: Their Utility in Meeting the OSPAR Convention’s Regulatory Needs’ (2008) 65 ices Journal of Marine Science: Journal du Conseil 1387; ‘Can Competent Authorities Cooperate for the Common Good: Towards a Collective Arrangement in the North-East Atlantic’ in Paul Arthur Berkman and Alexander N Vylegzhanin (eds), Environmental Security in the Arctic Ocean (Springer Netherlands 2013); Erik J Molenaar and Alex G Oude Elferink, ‘Marine Protected Areas in Areas beyond National Jurisdiction: The Pioneering Efforts under the OSPAR Convention’ (2009) 5 Utrecht Law Review; Alan Simcock, ‘OSPAR Convention on the Protection of the Marine Environment of the North-East Atlantic’ in Ulrich Beyerlin, Peter-Tobias Stoll and Rüdiger Wolfrum (eds), Ensuring Compliance with Multilateral Environmental Agreements: A Dialogue between Practitioners and Academics (Martinus Nijhoff Publishers 2006). For more information about the helcom regime, see Hermanni Backer and others, ‘HELCOM Baltic Sea Action Plan – A Regional Programme of Measures for the Marine Environment Based on the Ecosystem Approach’ (2010) 60 Marine Pollution Bulletin 642; Peter Ehlers, ‘The Baltic Sea Area: Convention on the Protection of the Marine Environment of the Baltic Sea Area (Helsinki Convention) of 1974 and the Revised Convention of 1992’ (1994) 29 Marine Pollution Bulletin 617; Kristine Kern, ‘Governance For Sustainable Development in the Baltic Sea Region’ (2011) 42 Journal of Baltic Studies 21. See also Michael Gilek and Kristine Kern (eds), Governing Europe’s Marine Environment: Europeanization of Regional Seas Or Regionalization of EU Policies? (Ashgate 2015); Jesper Raakjaer and others, ‘Ecosystem-Based Marine Management in European Regional Seas Calls for Nested Governance Structures and Coordination – a Policy Brief’ (2014) 50, Part B Marine Policy 373; Judith van Leeuwen, Luc van Hoof and Jan van Tatenhove, ‘Institutional Ambiguity in Implementing the European Union Marine Strategy Framework Directive’ (2012) 36 Marine Policy 636.
Antarctic Treaty (adopted on 1 December 1959, entered into force on 23 June 1961) 402 unts 71, 19 ilm 860 (1980).
Convention for the Conservation of Antarctic Marine Living Resources (1980 camlr Convention) (adopted on 20 May 1980, entered into force on 7 April 1982) 1329 unts 48, 19 ilm 841 (1980).
North-West Pacific Region; East Asian Seas; South Asian Seas; Arctic Region; South-West Atlantic Region.
Other shared priorities include ship-generated marine pollution; destruction of ecosystems and habitats due to coastal development and urbanization; conservation and management of marine and coastal ecosystems; Integrated Coastal Zone Management and Integrated Coastal Area and River Basin Management; over-exploitation and depletion of living marine resources; and monitoring, reporting and assessment of the marine environment. See unep, Marine Litter (n 284) 16.
See, for instance, VanderZwaag and Powers (n 462) 443; Leila Mead, ‘The “Crown Jewels” of Environmental Diplomacy: Assessing the unep Regional Seas Programme’ (iisd Earth Negotiation Bulletin 2021) Still only one Earth: Lessons from 50 years of UN sustainable development policy Brief#17.
Regional assessment reports address institutional arrangements, capacities and funding resources and identify gaps and needs: see unep-map, Marine Litter Assessment in the Mediterranean (2015); unep-nowpap, Marine Litter in the Northwest Pacific Region (2008); unep-cobsea, Marine Litter in the East Asian Seas Region (2008); unep and wiomsa, Marine Litter in the Eastern Africa Region: An Overview Assessment (2008); unep-cep, Marine Litter in the Wider Caribbean: A Regional Overview and Action Plan (2008); bsc, Marine Litter in the Black Sea Region: A Review of the Problem (2007); persga, Marine Litter in the PERSGA Region (2008); sacep, Marine Litter in the South Asian Seas Region (2007); cpps, Marine Litter in the Southeast Pacific Region: A Review of the Problem (2007); helcom-marlin, ‘Final Report of Baltic Marine Litter Project Marlin: Litter Monitoring and Raising Awareness 2011–2013’ (2014); cep, Marine Litter in the Caspian Region: Review and Framework Strategy (2009); ospar Commission, Marine Litter in the North-East Atlantic Region: Assessment and Priorities for Response (2009).
unep, Marine Litter (n 284) 11. See also unga Res 60/30 (2005), ‘Oceans and the Law of the Sea’ para 65.
helcom, ‘Regional Action Plan for Marine Litter in the Baltic Sea’ (2015); ospar Commission, ‘Regional Action Plan for Prevention and Management of Marine Litter in the North-East Atlantic’ (2014); sacep, ‘Towards Litter Free Indian Ocean: Summary of the Regional Marine Litter Action Plan for South Asian Seas Region’ (2018); sprep, ‘Cleaner Pacific 2025: Pacific Regional Waste and Pollution Management Strategy 2016–2025’ (2016); unep-car/rcu, ‘Regional Action Plan on Marine Litter Management (RAPMali) for the Wider Caribbean Region 2014’ (2014); unep-cobsea, ‘Regional Action Plan on Marine Litter’ (2019); unep-map, ‘Regional Plan for the Marine Litter Management in the Mediterranean’ (2013) unep (depi)/med wg.379/5; unep-nowpap, ‘NOWPAP Regional Action Plan on Marine Litter’ (2008).
cf 1992 ospar Convention, in which the contracting parties recognize that ‘it may be desirable to adopt, on the regional level, more stringent measures […] than are provided for in international conventions or agreements with a global scope’.
See 1981 Lima Convention, particularly Article 3(1) and (3), as well as Article 4. Unlike most of the other conventions, the Lima Convention refers to existing international standards.
See, for instance, 1995 Barcelona Convention.
According to the definition as used in the 1992 ospar Convention, the precautionary principle means that ‘preventive measures are to be taken when there are reasonable grounds for concern […] even when there is no conclusive evidence of a causal relationship between the inputs and the effects’: art 2(2)(a). See also 1992 Helsinki Convention art 3(2).
Such region-specific concerns include, for instance, the transboundary movement of hazardous wastes and their disposal, coastal erosion, coastal dredging or the storage of radioactive wastes.
1992 ospar Convention art 23. The commission’s supervisory power is somewhat curtailed by the possibility for parties to opt out from a decision, in which case a decision is not binding on these parties: see ibid art 13(2). See also Simcock (n 1196).
Most regional conventions contain a pactum de contrahendo provision, envisaging the future adoption of a liability regime by the contracting parties. Implementation of these provisions is slow or inexistent, which is why they have been referred to as ‘dead letters in the sea’: see R Lefeber, ‘The Liability Provisions of Regional Sea Conventions: Dead Letters in the Sea?’ in Davor Vidas and Willy Østreng (eds), Order for the Oceans at the Turn of the Century (Kluwer Law International 1999); Tullio Scovazzi, ‘The Mediterranean Guidelines for the Determination of Environmental Liability and Compensation: The Negotiations for the Instrument and the Question of Damage That Can Be Compensated’ (2009) 13 Max Planck Yearbook of United Nations Law 183, 185.
1992 Bucharest Convention art xvi.
1995 Barcelona Convention art 1(2); 1992 Helsinki Convention art 1.
2002 Antigua Convention art 2 para 1.
See Jambeck and others (n 291) 769; Meijer and others (n 1161) 2.
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.
See also 2010 Nairobi Protocol Article 13 on environmental impact assessment and audit.
While the requirement of prior authorisation with regard to pollution discharges is common to the instruments on land-based sources, there are differences with regard to the quantities that require an authorisation. Under the Helsinki Convention, for instance, a permit is required when discharges are more than negligible: 1992 Helsinki Convention art 6 para 3. In contrast, the ospar Convention and the Syracuse Protocol require a permit for point source discharges that affect the marine environment: 1992 ospar Convention Annex i art 2 para 1; 1996 Syracuse Protocol art 6 para 1.
See, for instance, 2009 Sofia Protocol Annex ii; 1992 Helsinki Convention Annex iii; 2012 Moscow Protocol Annex ii.
Most of the older instruments on land-based sources of pollution used to follow the so-called black and grey lists approach. Much like in (older) instruments regulating dumping at sea, prohibited substances were listed in black lists, while grey lists contained substances that were to be strictly limited. With the adoption of the 1996 London Dumping Protocol, the black and grey list approach of the London Dumping Convention was replaced by the revised-list approach, according to which dumping is prohibited except for the listed substances: see Redgwell (n 582) 188. A revised-list approach is also applied under the ospar regime on dumping (in contrast to the black and grey lists as used under its predecessor, the 1974 Paris Convention). For land-based sources of pollution, however, the ‘prohibited unless permitted’ approach does not apply in this strict sense. Instead, in most of the instruments that have been revised since the 1990s, a list of priority substances and activities was substituted for the black and grey lists. The new approach, generally referred to as uniform approach, takes account of the fundamental goal of preventing all marine pollution, including pollution by traditionally grey list substances. Today, the 1983 Quito and the 1992 Bucharest Protocols are the only protocols on land-based sources to use black and grey lists. For more information, see David Joseph Attard and others (eds), The IMLI Manual on International Maritime Law Volume III: Marine Environmental Law and International Maritime Security Law (Oxford University Press 2016) ch 5.3.2; Tanaka, ‘Regulation of Land-Based Marine Pollution’ (n 363) 553–58; Tanaka, International Law of the Sea (n 360) 282–84.
See, for instance, 1996 Syracuse Protocol Annex i; 2012 Abidjan Protocol Annex i; 2010 Nairobi Protocol Annex ii; 2009 Sofia Protocol Annex i; 1992 Helsinki Convention Annex i; 2012 Moscow Protocol Annex i. The Jeddah Protocol does not contain a list but directly refers to the gpa and the substances and properties as listed therein: 2005 Jeddah Protocol Annex i.
1996 Syracuse Protocol Annex iv; 2012 Abidjan Protocol Annex i; 2012 Moscow Protocol Annex v.
See 1996 Syracuse Protocol Annex iv; 2012 Abidjan Protocol Annex ii; 2010 Nairobi Protocol Annex i; 2009 Sofia Protocol Annex v; 2012 Moscow Protocol Annex v; 1992 ospar Convention Appendix 1.
Environmental quality objectives are defined as clearly identified objectives or goals ‘for purposes of environmental quality whether in specific or general application to relevant environmental resources, activities or programmes’: see 2010 Nairobi Protocol art 1(viii). In 2008, the ospar Commission adopted an Ecological Quality Objective on the number of plsstic particles in seabird stomachs: ospar Commission, Background Document for the EcoQO on Plastic Particles in Stomachs of Seabirds (2008). See also Heslenfeld and Enserink (n 1196) 1394; Johnson, ‘Environmental Indicators’ (n 1196) 1390.
Environmental quality standards refer to ‘the concentration of a particular substance or group of substances in water, sediment or biota that should not be exceeded to protect human health or the environment’: see 1985 Nairobi Convention art 1(ix).
See, for instance, 2009 Sofia Protocol art 17.
See, for instance, 1983 Cartagena Convention art 12 para 3. The Noumea and Helsinki Conventions provide for stricter duties in this regard: 1986 Noumea Convention art 16 para 3(b); 1992 Helsinki Convention art 7.
See, for instance: 2002 Antigua Convention art 5 para 6(c); 1995 Barcelona Convention art 4 para 3(d); 1985 Nairobi Convention art 13 para 3; 2010 Nairobi Convention art 14 para 3. See also 1990 Kuwait Protocol art viii para 4.
See, for instance, 2010 Nairobi Protocol art 20 para 3(c).
See Tullio Scovazzi, ‘The Governance of the Mediterranean Sea’ in Joseph F DiMento and Alexis Jaclyn Hickman (eds), Environmental Governance of the Great Seas: Law and Effect (Edward Elgar Publishing 2012) 89–96. On the negotiation history of the Barcelona system see, in particular, Arsen Pavasovic, ‘The Mediterranean Action Plan Phase ii and the Revised Barcelona Convention: New Prospective for Integrated Coastal Management in the Mediterranean Region’ (1996) 31 Ocean & Coastal Management 133.
Barcelona Convention, ‘Report of the 9th Ordinary Meeting of the Contracting Parties’ (1995) unep(oca)/med ig.5/16 Annex ix.
Parties: 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. The convention’s status of ratification is available at Barcelona Convention, ‘Status of Signatures and Ratifications’ <
1995 Barcelona Convention art 1(1–2).
ibid art 4(1).
ibid art 4(2).
ibid art 4(3).
ospar-helcom Joint Ministerial Meeting, ‘Statement on the Ecosystem Approach to the Management of Human Activities “Towards an Ecosystem Approach to the Management of Human Activities”’ (2003).
Barcelona Convention MoP Decision ig.20/4 (2012) (n 1236) 59.
Barcelona Convention MoP Decision ig.21/3 (2013), ‘Decision IG.21/3 on the Ecosystems Approach Including Adopting Definitions of Good Environmental Status (GES) and Targets’ unep(depi)/med ig.21/9 Annex ii, 33.
Barcelona Convention MoP Decision ig.22/7 (2016), ‘Integrated Monitoring and Assessment Programme of the Mediterranean Sea and Coast and Related Assessment Criteria’ unep(depi)/med ig.22/28, 419.
1995 Barcelona Convention art 4(4).
ibid art 8.
ibid art 12.
ibid art 13.
ibid art 15(1–2).
See Barcelona Convention MoP Decision ig.19/6 (2009), ‘MAP/Civil Society Cooperation and Partnership’ unep(depi)/med ig.19/8 Annex ii, 59. The Regional Cooperation Platform on Marine Litter in the Mediterranean, serving as a forum for consultation and exchange of good practices, involves private organizations and academic institutions along with the regional centres of the Barcelona Convention.
Referred to in the protocol as the hydrologic basin: 1996 Syracuse Protocol art 3(b) in conjunction with art 2(d).
ibid art 4(1)(b) in conjunction with Annex iii.
ibid art 1.
ibid art 5(2).
Various industry sectors involving the production, use and disposal of plastics are covered by the annex. Also, marine litter is mentioned explicitly as a category of substance of particular concern with regard to the implementation of the protocol.
1996 Syracuse Protocol art 15.
ibid art 6.
ibid art 7(1)(d).
According to Kütting, EU law and the Barcelona regime complement each other successfully: Gabriela Kütting, ‘Mediterranean Pollution: International Cooperation and the Control of Pollution from Land-Based Sources’ (1994) 18 Marine Policy 233, 245.
Good environmental status is defined as ‘the environmental status of marine waters where these provide ecologically diverse and dynamic oceans and seas which are clean, healthy and productive’: European Parliament and Council Directive 2008/56/ec of 17 June 2008 establishing a framework for community action in the field of marine environmental policy (Marine Strategy Framework Directive) [2008] oj L164/19 art 3(5).
unep-map (n 1204). See also Barcelona Convention MoP Decision ig.22/10 (2016), ‘Implementing the Marine Litter Regional Plan in the Mediterranean (Fishing for Litter Guidelines, Assessment Report, Baselines Values, and Reduction Targets)’ unep(depi)/med ig.22/28, 523. A currently planned update of the action plan aims to increase the focus on a circular economy: Barcelona Convention MoP Decision ig.24/10 (2019), ‘Main Elements of the Six Regional Plans to Reduce/Prevent Marine Pollution from Land- Based Sources; Updating the Annexes to the LBS and Dumping Protocols of the Barcelona Convention’ unep/med ig.24/22, 492 Annex ch 7.
‘Guidelines on Liability and Compensation for Damage Resulting from Pollution of the Marine Environment in the Mediterranean Sea Area’ in Barcelona Convention, ‘Report of the 15th Ordinary Meeting of the Contracting Parties’ (2008) unep(depi)/med ig.17/10 Annex v, 135.
Barcelona Convention MoP Decision ig.19/3 (2009), ‘Implementation of and Reporting on Guidelines for the Determination of Liability and Compensation for Damages Resulting from Pollution of the Marine Environment in the Mediterranean Sea Area’ in Barcelona Convention, ‘Report of the 16th Ordinary Meeting of the Contracting Parties’ (2009) unep(depi)/med ig.19/8 Annex ii, 15.
Environmental damage includes, among other things, costs related to the assessment of the damage, clean-up and restoration costs, as well as possible diminution in value of natural resources.
For more information on the Mediterranean liability guidelines, see Scovazzi, ‘The Mediterranean Guidelines for the Determination of Environmental Liability and Compensation’ (n 1211).
See Barcelona Convention MoP Decision ig.17/2 (2008), ‘Procedures and Mechanisms on Compliance under the Barcelona Convention and Its Protocols’ unep(depi)/med ig.17/10 Annex v, 21, as amended by Decisions ig.20/1, ig. 21/1 and ig.22/15; Barcelona Convention MoP Decision ig.19/1 (2009), ‘Rules of Procedure for the Compliance Committee and Its Work during 2010–2011 Biennium’ unep(depi)/med ig.19/8 Annex ii, 1, as amended by Decision ig.21/1.
Irini Papanicolopulu, ‘Procedures and Mechanisms on Compliance under the 1976/1995 Barcelona Convention on the Protection of the Mediterranean Sea and Its Protocols’ in Tullio Treves and others (eds), Non-Compliance Procedures and Mechanisms and the Effectiveness of International Environmental Agreements (tmc Asser Press 2009) 166.
See 1996 Syracuse Protocol art 12.
1995 Barcelona Convention art 26.
1996 Syracuse Protocol art 13.
Barcelona Convention MoP Decision ig.17/3 (2008), ‘Format for the Implementation of the Barcelona Convention and Its Protocols’ unep(depi)/med ig.17/10 Annex v, 29.
Barcelona Convention MoP Decision ig.19/4 (2009), ‘Testing MAP Effectiveness Indicators’ unep(depi)/med ig.19/8 Annex ii, 29.
1995 Barcelona Convention art 27.
Barcelona Convention MoP Decision ig.22/15 (2016), ‘Compliance Mechanisms and Procedures, Membership and Working Programme of the Compliance Committee for the Biennium 2016–2017’ unep(depi)/med ig.22/28, 629 Annex i.
See Barcelona Convention MoP Decision ig.24/14 (2019), ‘Programme of Work and Budget 2020–2021’ unep/med ig.24/22, 696 at 700.
Joseph F DiMento and Alexis Jaclyn Hickman, Environmental Governance of the Great Seas: Law and Effect (Edward Elgar Publishing 2012) 70.
Unsustainable practices include inadequate sewage systems, land reclamation, removal of mangrove belts and general deforestation, uncontrolled aquaculture and agriculture practices, littering, dumping, unsustainable tourism and industrial waste run off: see ibid 71.
See ibid 70; Hugh Kirkman, ‘The East Asian Seas UNEP Regional Seas Programme’ (2006) 6 International Environmental Agreements: Politics, Law and Economics 305, 306.
What is more, only very few South East Asian countries are party to international environmental agreements, including the 1972 London Dumping Convention.
unep-cobsea, ‘Regional Programme of Action for the Protection of the Marine Environment of the East Asian Seas from the Effects of Land-Based Activities’ (2000).
unep-cobsea, Marine Litter in the East Asian Seas Region (n 1202); ‘Regional Action Plan on Marine Litter’ (n 1204).
unep-cobsea, ‘COBSEA Strategic Directions 2018–2022’ (2018) para 7.
ibid para 23. See also DiMento and Hickman (n 1271) 74.
Kirkman (n 1273) 311–12.
See DiMento and Hickman (n 1271) 74–75.
Gabino Gonzalez and Frédéric Hérbert, ‘Conventions Relating to Pollution Incident Preparedness, Response, and Cooperation’ in David Joseph Attard and others (eds), The IMLI Manual on International Maritime Law Volume III: Marine Environmental Law and International Maritime Security Law (Oxford University Press 2016) 215.
The unep/gef South China Sea Project is an example for a regionally coordinated programme of action funded by the gef. The project aimed to reverse environmental degradation, including from land-based pollution.
See, for instance, unep-cobsea, ‘Report of the Twenty-First Meeting of the Coordinating Body on the Seas of East Asia (COBSEA)’ (2013) unep/depi/cobsea igm 21/6 paras 48–50. Such competing agencies include the Partnerships in Environmental Management for the Seas of East Asia (pemsea), the Association of Southeast Asian Nations (asean), fao, and ioc/westpac.
See DiMento and Hickman (n 1271) 82.
See ibid 75–76; Kirkman (n 1273) 312.
Kirkman (n 1273) 312. According to Kirkman, the lack of a legally binding instrument on the protection of the marine environment in the East Asian Seas is a source of conflict between unep and the cobsea member countries: ibid 307.
cf Hassan (n 364) 104.
See DiMento and Hickman (n 1271) 156.
See, for instance, Hassan (n 364) 126.
Prominent examples of inter-regional cooperation include the Baltic2Black Project between the Black Sea Commission and the Helsinki Commission, as well as capacity building by the ospar Commission in the wacaf region.
See DiMento and Hickman (n 1271) 166; Jon M van Dyke, ‘Whither the z Regional Seas Programmes?’ in Harry N Scheiber and Jin-Hyun Paik (eds), Regions, Institutions, and Law of the Sea: Studies in Ocean Governance (Martinus Nijhoff Publishers 2013) 92.
See Hassan (n 364) 147; DiMento and Hickman (n 1271) 169; van Dyke (n 1291) 108; VanderZwaag and Powers (n 462) 448–51.
See Sections 2.1.A.ii and 2.1.B.ii.3)c) above.
See Tanaka, ‘Regulation of Land-Based Marine Pollution’ (n 363) 564.
VanderZwaag and Powers (n 462) 446.
See Birnie, Boyle and Redgwell (n 488) 462.
DiMento and Hickman (n 1271) 76; Jan PM van Tatenhove, ‘How to Turn the Tide: Developing Legitimate Marine Governance Arrangements at the Level of the Regional Seas’ (2013) 71 Ocean & Coastal Management 296, 296.
See DiMento and Hickman (n 1271) 135; van Dyke (n 1291) 108.
See DiMento and Hickman (n 1271) 173.
See United Nations, ‘Addis Ababa Action Agenda of the Third International Conference on Financing for Development’ (2015) 1; unga Res 70/1 (2015) (n 515) paras 39–46 and 60–71. See also ‘Washington Declaration on Protection of the Marine Environment from Land-Based Activities’ (n 457) paras 4 and 6.
Agenda 21 (n 450) para 37.1.
unep (ed), Capacity Building for Sustainable Development: An Overview of UNEP Environmental Capacity Development Initiatives (2002) 11.
As an example of an inter-regional MoU see ‘Memorandum of Understanding between the Secretariat of the ospar Convention and the Secretariat of the Abidjan Convention’ (2013) <
See 2012 Abidjan Protocol art 21; 1999 Aruba Protocol art xvi; 2005 Jeddah Protocol art 15 para 3 and art 16; 2012 Moscow Protocol art 20; 2010 Nairobi Protocol art 20; 2009 Sofia Protocol art 18.
See, for instance, 2010 Nairobi Protocol art 20 paras 3–4.
See, among others, unep and noaa (n 501); unep, ‘Marine Litter Legislation: A Toolkit for Policymakers’ (n 509); cbd Secretariat (n 375); ten Brink and others (n 354); unep, ‘UNEA-2 Technical Report on Marine Plastic Debris’ (n 509) chapters 8 and 9; unga Res 70/1 (2015) (n 515); A Arroyo Schnell and others, ‘National Marine Plastic Litter Policies in EU Member States: An Overview’ (iucn 2017); European Commission, ‘A European Strategy for Plastics in a Circular Economy’ (2018) com(2018) 28 final, with Annexes; unep, ‘Stocktaking Rport’ (n 509); Single-Use Plastics: A Roadmap for Sustainability (n 94); ‘Legal Limits on Single-Use Plastics’ (n 509).
unep, ‘GPA’ (n 458) chs ii and v.
See unep-nowpap (n 1204); helcom (n 1204); ospar Commission, ‘Marine Litter Action Plan’ (n 1204); unep-car/rcu (n 1204); unep-map (n 1204).
Agenda 21 (n 450) para 17.22.
See unep, ‘Marine Litter Legislation: A Toolkit for Policymakers’ (n 509) 3.
See Section 2.1.A.ii.2) above.
unep, ‘Legal Limits on Single-Use Plastics’ (n 509).
Regulation on sub-national level is excluded. The report notes, however, that some states in the US have adopted preemptive legislation preventing states from enacting plastic bag bans: ibid 12.
For the purposes of the report, microbeads are defined as man-made plastic particles intentionally added to consumer products, typically less than or equal to 5 mm in size.
unep, ‘Legal Limits on Single-Use Plastics’ (n 509) 3–4.
unep, ‘Annual Report 2018’ (2019).
For a comprehensive overview on EU regulation relevant to marine plastic pollution up to 2015, see Aleke Stöfen-O’Brien, The International and European Legal Regime Regulating Marine Litter in the EU (Nomos Verlag 2015) ch 4.
See tfeu art 191(2).
European Parliament and Council Decision No 1386/2013/EU of 20 November 2013 on a General Union Environment Action Programme to 2020 ‘Living well, within the limits of our planet’ (7th eap) [2013] oj L354/171 Priority objective 1 para 28(iii).
European Commission, ‘Closing the Loop – an EU Action Plan for the Circular Economy’ (2015) com(2015) 614 final 13 ch 5.1.
ten Brink and others (n 354).
Stöfen-O’Brien (n 1317) 270.
Waste Framework Directive art 1.
ibid art 4. The waste hierarchy includes: prevention; preparing for reuse; recycling; other recovery, e.g. energy recovery; and disposal; in this order of priority.
In the European packaging industry, producer responsibility is widely outsourced to the Packaging Recovery Organisation (pro) Europe, an umbrella organization for European packaging and packaging waste recovery and recycling schemes. The organization operates in most European countries through the Green Dot trademark of which pro Europe is the general licensor. The Green Dot is used as a label on packaging of consumer goods and informs consumers about the producers’ contribution to the cost of recovery and recycling. Taking into account the cost of collection, sorting and recycling methods, the licence fee depends on the sort and amount of packaging materials and thus encourages producers to reduce packaging in order to save packaging costs. pro Europe has concluded cooperation agreements with similar systems in the UK and North America in order to ensure that licensees of the Green Dot do not encounter problems when using labelled packaging in these regions. For more information, see pro Europe, ‘About Packaging Recovery Organisation Europe’ <
European Parliament and Council Directive 2018/851 of 30 May 2018 amending Directive 2008/98/ec on waste [2018] oj L150/109 preambulatory para 29.
Packaging and Packaging Waste Directive art 1(1).
ibid art 1(2).
On the compatibility of packaging and packaging waste regulations with wto law, see subchapter 2.3.B.iii below. The essential requirements of the Packaging and Packaging Waste Directive have been transposed into national legislation of member states, for instance into UK law through The Packaging (Essential Requirements) Regulations 2015 (Statutory Instruments).
Packaging and Packaging Waste Directive art 12.
European Parliament, ‘Resolution of 14 January 2014 on a European Strategy on Plastic Waste in the Environment’ 2013/2113(ini) para 4.
- –adopt measures ensuring that the annual consumption level does not exceed 90 lightweight plastic carrier bags per person by 31 December 2019 and 40 lightweight plastic carrier bags per person by 31 December 2025, or equivalent targets set in weight; or
- –adopt instruments ensuring that, by 31 December 2018, lightweight plastic carrier bags are not provided free of charge at the point of sale of goods or products, unless equally effective instruments are implemented.
European Parliament and Council Directive 2018/852 of 30 May 2018 amending Directive 94/62/ec on packaging and packaging waste [2018] oj L150/141.
European Parliament and Council Directive 2018/850 of 30 May 2018 amending Directive 1999/31/ec on the landfill of waste [2018] oj L150/100.
Council Directive 1999/31/ec of 26 April 1999 on the landfill of waste (Landfill Directive) [1999] oj L182/1 art 1.
ibid art 5(3a).
ibid art 5(5).
European Commission, ‘A European Strategy for Plastics in a Circular Economy’ (n 1306) 1.
See wto Notification g/tbt/n/chn/1211 of 18 July 2017.
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.
Oxo-degradable plastics are conventional plastic materials with artificial additives allowing them to fragment more rapidly but not (necessarily) to biodegrade.
Council Directive 19/271/eec of 21 May 1991 concerning urban waste water treatment (Urban Waste Water Treatment Directive) [1991] oj L135/40.
Especially reach.
Commission Delegated Regulation (EU) 2020/2174 of 19 October 2020 amending Annexes ic, iii, iiia, iv, v, vii and viii to Regulation (ec) No 1013/2006 of the European Parliament and of the Council on shipments of waste [2020] oj L433/11. On the 2019 plastic amendments to the Basel Convention, see Section 2.1.D.ii.1) above.
European Commission, ‘A European Strategy for Plastics in a Circular Economy, Annexes’ (2018) com(2018) 28 final, Annexes.
European Commission, ‘Fact Sheet: European Union Commitments to Our Ocean 2018’ (2018) memo/18/6210 <
European Parliament and Council Directive 2000/60/ec of 23 October 2000 establishing a framework for Community action in the field of water policy (Water Framework Directive) [2000] oj L327/1.
Marine Strategy Framework Directive.
Council Directive 92/43/eec of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (Habitats Directive) [1992] oj L206/7.
See Water Framework Directive art 1.
ibid art 2(13).
For a more detailed analysis of the role of the Water Framework Directive with regard to marine plastic pollution mitigation, see Stöfen-O’Brien (n 1317) 329–350.
Marine Strategy Framework Directive art 1.
ibid Annex i (Qualitative descriptors for determining good environmental status), Descriptor 10. See also Arroyo Schnell and others (n 1306) 4.
Marine Strategy Framework Directive art 13(1).
Including, for instance, Scotland: In June 2010, the Scottish Government launched Scotland’s Zero Waste Plan, which sets out a vision for a zero waste society. The plan is complemented by Scotland’s Marine Litter Strategy and National Litter Strategy: Scottish Government, ‘Scotland’s Zero Waste Plan’ (2010); ‘Marine Scotland: A Marine Litter Strategy for Scotland’ (2014); ‘Towards a Litter-Free Scotland: A Strategic Approach to Higher Quality Local Environments’ (2014). The two documents were adopted in 2014 in implementation of the msfd and other commitments of the country, including under the ospar Convention. See unep, ‘Marine Litter Legislation: A Toolkit for Policymakers’ (n 509) 16–18; Arroyo Schnell and others (n 1306) 5. In their study, Schnell and others provide a broad overview on implementation policies in EU Member States.
Barrowclough, Deere Birkbeck and Christen (n 91) 11.
See Deere Birkbeck and others (n 134) 311–12.
Deere Birkbeck (n 952) 4.
ibid 3.
ibid 11.
See unctad (n 952). For more sustainable trade policy choices, the environmental footprint of alternative materials, whether in terms of deforestation, pesticide use in plantations or water consumption, must also be considered.
Deere Birkbeck and others (n 134) 310–14. See also unep, ‘Legal Limits on Single-Use Plastics’ (n 509).
These include measures implemented by Chinese Taipei (‘Regulation on plastic trays and packaging’), Jamaica (‘Ban on single-use plastic products’), Trinidad and Tobago (‘Ban on plastic products of polystyrene’), Saudi Arabia (‘Regulation on oxo–biodegrade able plastic products’) and China (‘Catalogue of solid wastes forbidden to import into China’): Deere Birkbeck and others (n 134) 307. France’s ban on plastic cups and plates was also criticized by manufacturers and other stakeholders as a form of disguised protectionism infringing EU legislation on the free movement of goods. France was the first European country to ban plastic cups and plates. 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. See, for instance, Simon Lester, ‘Legitimate Regulation or Disguised Protectionism: Plastic Bag Bans’ (International Economic Law and Policy Blog, April 2016) <
cf Cottier, ‘The Principle of Common Concern’ (n 1064).
Australia – Certain Measures Concerning Trademarks, Geographical Indications and Other Plain Packaging Requirements Applicable to Tobacco Products and Packaging (Australia Plain Packaging) [2018] Panel Report wt/ds467/r, wt/ds467/r/Add.1 and wt/ds467/r/Suppl.1 para 2.32.
ibid paras 7.1724–32.
tbt art 2.4.
ibid art 2.5 second sentance.
See Deere Birkbeck and others (n 134) 315–17. See also Sections 1.1.B.i.4) and 1.1.C.i above.
See Commission v Federal Republic of Germany [2004] European Court of Justice C-463/01, 2004 i-11705 Rep Cases; Radlberger and Spitz v Land Baden-Württemberg [2004] European Court of Justice C-309/02, 2004 i-11763 Rep Cases.
Packaging and Packaging Waste Directive art 6(10).
ibid art 7 para 1.
Waste Framework Directive art 8. See also 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 8.
See Commission v Federal Republic of Germany (n 1371); Radlberger and Spitz v Land Baden-Württemberg (n 1371).
In a case decided by a gatt Panel in 1992, a number of Canadian provinces levied a charge on all alcoholic beverage containers that were not part of a deposit and return system, or on non-refillable containers, both domestic and imported. The US argued that importers were not accorded national treatment because unlike local producers, they were not allowed to use private delivery systems to distribute their product. Because of this difference in treatment, it was cheaper for locals to establish container collection schemes. The panel found that the restrictions on the private delivery of imported beer were inconsistent with gatt Article iii:4. It did not, however, address the environmental tax itself: Canada – Import, Distribution and Sale of Certain Alcoholic Drinks by Provincial Marketing Agencies [1992] gatt Panel Report ds17/r, bisd 39S/27.
See oecd, Extended Producer Responsibility (n 557) 67.
See unep, Single-Use Plastics: A Roadmap for Sustainability (n 94) 25.
ibid 24.
Save Our Seas Act.
‘Remarks by President Trump at Signing of S. 3508, the “Save Our Seas Act of 2018”’ (n 9).
ibid.
‘U.S. Trade Representative Lighthizer Testifies Before the Senate Finance Committee on the Administration’s Trade Strategy and the United States-Mexico-Canada Ageement’ (18 June 2019) <
US, Save Our Seas 2.0 Act of 2020, S.1982, 116th Cong. Sections 201-05. As an example of a free-trade agreement addressing marine debris, see: Agreement between the United States of America, the United Mexican States, and Canada (usmca) (signed on 30 November 2018, entered into force on 1 July 2020) art 24.12.
Deere Birkbeck (n 952) 13–14.
The same applies to other matters deemed to be of common concern of humankind: see Cottier, ‘The Principle of Common Concern’ (n 1064) 67.
The author argues that ‘economic sanctions arguably have limited or undesirable effects with regard to environmental problems that are not caused by a lack of commitment and willingness in the first place, but to a lack of necessary means and capacities. As main contributors to marine plastic pollution mostly include lower-middle income countries, awareness-raising activities and capacity building seems the more effective means to encourage global commitment’: Schäli (n 20).