1 Introduction
1.1 Problem of Marine Plastic Pollution
It is estimated that more than eight million tons of plastics leak into the ocean each year, and if no action is taken, this is expected to quadruple by 2050. An alarming result of this is that the ocean might, by weight, contain more plastic than fish by the same year.1 Marine plastic pollution has serious impacts on the marine environment. Industries such as fisheries and tourism are affected. It may cause serious risks to human health, especially in the case of microplastics. As to the source of pollution, most of the marine plastic pollution is from land sources. Asia is by far the biggest source of pollution, with just five developing countries in the region accounting for around 60% of global pollution.2 As to the types of measures to cope with the problem, there is a growing consensus that downstream measures such as improvement of waste management infrastructures and implementation of clean-up programs are important but not sufficient. Therefore, an immediate response involving not only developed countries but also developing countries is required. The response needs to include not only downstream measures but also upstream measures focusing on reduction, reuse, and recycling of plastics.
1.2 Existing International Institutions
The response to date of the international community to the problem is best described by the concept of “fragmentation” as used in the literature of global governance theory: a policy domain marked by “a patchwork of international institutions that are different in their character (organizations, regimes, and implicit norms), their constituencies (public and private), their spatial scope
1.3 Proposed Options for the Way Forward
In the Assessment Report circulated in 2017, the United Nations Environment Programme (unep) provided three options with which to combat marine plastic pollution: maintaining the status quo (Option 1), strengthening existing international framework (Option 2), and creating a new international legally binding instrument (Option 3).5 Whereas Option 1 is not a true option and can be eliminated immediately, the line between Option 2 and Option 3 is not necessarily clear. If the choice between these options is non-binding or binding instruments, what is at issue may be understood as a question of tradeoffs between feasibility and effectiveness; that is, binding instruments may be more effective in inducing compliance, whereas it may not be politically feasible for countries to accept them. Alternatively, if the choice is whether we want multiple institutions operating somewhat independently or a single institution playing a central role, the issue may be a question of whether a fragmented approach or an integrated approach is more effective for the purpose of environmental governance. This is a question which has been widely discussed in the literature of global governance theory, but the debate is not conclusive.6 On the one hand, a fragmented approach may induce forum-shopping behaviors with each country choosing environmental standards and actions it can achieve without much effort. On the other hand, a fragmented approach may
2 Design of New Plastic Treaty
2.1 Models of New Plastic Treaty
Regarding the question of what kind of binding instrument should be created to address marine plastic pollution, there are two streams of ideas: one is that the new plastic treaty should be modelled after the Montreal Protocol on Substances that Deplete the Ozone Layer, and the other is that the Paris Agreement on climate change is the more appropriate model.7 The characteristic of the Montreal Protocol is its top-down approach. The Protocol lists certain substances in its Annexes and obliges the parties to phase out the use of those substances. This obligation applies not only to developed countries but also to developing countries being subject to different timeframes. In contrast with this is the approach of the Paris Agreement. The Agreement sets the global target at “well below 2 degrees Celsius above pre-industrial levels.” However, instead of providing mandatory reduction targets and actions for each party, the Agreement allows each party to set its own level of ambition and develop its own action plans. The Montreal Protocol model is attractive, because the Protocol is considered one of the most successful environmental treaties ever created. However, in certain contexts, it is simply not feasible because it is too ambitious. The Kyoto Protocol is a good example. On the other hand, the bottom-up approach of the Paris Agreement seems to be feasible in most contexts, but it may not be sufficient to solve the problem. It is too early to say anything about the performance of the Agreement, but the experience
2.2 Factors to Be Examined
There are a variety of factors that may be examined in diagnosing environmental problems, five examples of which are herein considered. First, one of the most basic questions to be asked is “where does the damage occur?” If it occurs within a territory of a specific country, as in the case of transboundary movements of hazardous waste, the best response may be to let that country itself to decide what to do by introducing procedural obligations such as prior informed consent. In a case where the damage occurs in territories of unspecified number of countries or in public domain, substantive obligations setting standards and actions would be necessary.
Second, another important question that may be asked is “whether a polluter and a victim can be identified?” If both can be identified, liability and compensation mechanisms may be a good way to incentivize parties to prevent damages. In a case where a victim can be identified, but not a polluter, creation of an international fund for compensation may be worth considering. If it is only a polluter that can be identified, creation of an entity which receives compensation on behalf of the international community may be an option.
The third question is “whether alternative technologies are technically and economically available?” When this is the case, the ambitious top-down approach such as the one of the Montreal Protocol may be feasible. In fact, studies suggest that an important reason for the success of the Protocol was that solutions were already available that were profitable for the industries.9
The fourth question is “is a problem visible to the public?” A good counterexample is the cbd. Many factors have contributed to the underperformance of the Convention, but one of the most important is arguably a low visibility of the problem. It is hard for the public to understand what exactly is lost when biodiversity is lost. As a result, countries have been struggling to mobilize
Finally, one of the key factors which has a strong impact on the structure and content of environmental treaties is “who pays the cost and who receives the benefit of environmental protection?” Again, the experience of the cbd seems relevant. The reason is that every country has to pay to preserve biodiversity, but those who have to pay the most are developing countries, because biodiversity is especially abundant in those countries. It is also the case that every country benefits from preservation of biodiversity, but those who will benefit the most are probably the bioindustries in developed countries. In such a situation, strong corporations are unlikely to emerge.
2.3 Some Preliminary Observations
The results of examinations according to the factors just described of some environmental problems including marine plastic pollution are shown in Table 22.1 below. While there are a lot of oversimplifications in the table, it nevertheless may provide a broad idea of what a new plastic treaty might look like. Let us make three observations. First, as to the above second question, “whether a polluter and a victim can be identified,” various scenarios may be considered in the case of marine plastic pollution. For example, in an enclosed or semi-enclosed sea, it may be possible to identify where plastics come from and where they end up. Additionally, if it is possible to track the movement of plastic debris using satellite technologies, polluters and victims may be identified in broader circumstances. Even then, various questions have to be addressed including whether it is a government or an industry or a company which should assume liability.10 Still, some type of compensation mechanism may be worth considering as a technique to incentivize prevention.
Second, as to the fourth question, “is a problem visible to the public,” the problem of marine plastic pollution seems highly visible. This suggests consumer information schemes such as eco-labelling and awareness raising programs work particularly effectively.
Third, regarding the fifth question, one of the most important characteristics of the problem of marine plastic pollution is that there is a large overlap between “who pays the cost and who receives the benefit of environmental
Examinations of selected environmental problems
Problems Factors |
Biodiversity loss |
Depletion of ozone layer |
Climate change |
Marine plastic pollution |
|---|---|---|---|---|
1. Does the damage occur within the territory of specific country? |
No |
No |
No |
No |
2. Can a polluter and a victim be identified? |
Both hard to identify |
Both hard to identify |
Both hard to identify |
Various scenarios |
3. Are alternative technologies reasonably available? |
No |
Yes |
No |
No |
4. Is the problem visible to the public? |
Low visibility |
Medium |
Medium |
High visibility |
5. Who pays the cost and who receives the benefit? |
Large divide |
All parties pay and receive |
Some divide |
Large overlap |
3 Design of New Plastic Treaty Continued: Factor of International Trade
3.1 International Trade and Unilateral Regulations on Plastics
Lastly, let us examine another factor which may greatly impact the design of a new plastic treaty, namely, the factor of international trade. The bottom line here is that when markets are highly integrated throughout the supply
3.2 Unilateral Regulations on Plastics and the wto Agreement
… it is not acceptable, in international trade relations, for one wto Member to use an economic embargo to require other Members to adopt
essentially the same comprehensive regulatory program, to achieve a certain policy goal, as that in force within that Member's territory, without taking into consideration different conditions which may occur in the territories of those other Members.13
Between these two types of regulations, product design requirements on plastics fall into the first type, because it is the design, additives, and components of the product itself that are addressed by the regulation.
3.3 Case for Negotiated International Regulations
The examinations in the above two paragraphs indicate that in the case of plastic design requirements, countries are likely to be able to impose these requirements unilaterally, and especially when it is a large economy such as the European Union or the United States, those unilateral regulations may be de facto international regulations. This is a positive thing for the purpose of combatting marine plastic pollution, but the problem of this approach is that strict regulations unilaterally or collaboratively set by some large economies become de facto international regulations, without taking into consideration different conditions and different development needs of other countries, especially developing ones. This is arguably one of the most important points to be considered when designing a new plastic treaty, particularly because in the existing literature, it is sometimes argued that the purpose of international regulations on plastic design is to create a level playing field for industry and governments,14 or that these regulations are not appropriate or feasible since this kind of top-down regulations touch upon sensitive aspects of national sovereignty.15 The reality, however, may be the other way around. Large economies can set de facto international regulations unilaterally or collaboratively anyway. If this is the case, it may be more appropriate to set the international regulations through multilateral negotiation, so that some flexibilities and some schemes for technical and financial assistance can be agreed upon together with those regulations.
4
In conclusion, if we can agree upon some top-down rules in a multilateral instrument, it may make more sense to make that instrument legally-binding and let that binding instrument play a central role in the combat against marine plastic pollution. Political and social contexts for such an ambitious instrument may not be as favorable as the issue of ozone layer depletion, but may be more favorable than the issue of biodiversity loss or climate change. Therefore, what we may want is a hybrid of top-down and bottom-up approaches, and if this is the case, an important question is what kind of standards and actions should be imposed from top-down, and what kind of standards and actions should be left to the discretion of each country. This, of course, requires a thorough examination, but product design requirements may be a good candidate for a top-down approach.
Ellen MacArthur Foundation, The New Plastics Economy: Rethinking the Future of Plastics (2016), p. 12.
Peter Dauvergne, “Why is the Global Governance of Plastic Failing the Oceans?” Global Environmental Change 51 (2018), p. 25.
Frank Biermann et al., “The Fragmentation of Global Governance Architectures: A Framework for Analysis,” 9 Global Environmental Politics 4 (2009), p. 16.
See, for detailed analysis of these instruments, unep, “Combating Marine Plastic Litter and Microplastics: An Assessment of the Effectiveness of Relevant International, Regional and Subregional Governance Strategies and Approaches,” UN Doc unep/aheg/2018/1/inf/3 (8 May 2018), pp. 22–55.
Ibid., pp. 74–99. See, also, Karen Raubenheimer et al., “Towards an Improved International Framework to Govern the Life Cycle of Plastics,” 27 RECIEL 3 (2018), pp. 215–219.
See, Frank Biermann and Rakhyun E. Kim, “Architectures of Earth System Governance: Setting the Stage,” in Frank Biermann and Rakhyun E. Kim, eds., Architectures of Earth System Governance: Institutional Complexity and Structural Transformation (2020), pp. 11–13; Frank Biermann et al., “Governance Fragmentation,” in ibid., pp. 168–172.
See, for example, Elizabeth A. Kirk, “The Montreal Protocol or the Paris Agreement as a Model for a Plastic Treaty,” 114 ajil Unbound (2020). See, also, Nils Simon and Maro Luisa Schulte, Stopping Global Plastic Pollution: The Case of an International Convention (2017); Karen Raubenheimer and Alistair Mcllgorm, “Is the Montreal Protocol a Model that Can Help Solve the Global Marine Plastic Debris Problem?” Marine Policy 81 (2017); Nordic Council of Ministers, Possible Elements of a New Global Agreement to Prevent Plastic Pollution (2020).
Oran R. Young, “Research Strategies to Assess the Effectiveness of International Environmental Regimes,” 1 Nature Sustainability 9 (2018), pp. 461–463.
See, for example, Ina Tessnow-von Wysocki and Philippe Le Billon, “Plastics at Sea: Treaty Design for a Global Solution to Marine Plastic Pollution,” Environmental Science and Policy 100 (2019), p. 95.
Sandrine Maljean-Dubois and Benoît Mayer, “Liability and Compensation for Marine Plastic Pollution: Conceptual Issues and Possible Ways Forward,” 114 ajil Unbound (2020), pp. 207–208.
Carolyn Deere Birkbeck, “Strengthening International Cooperation to Tackle Plastic Pollution: Options for the wto,” Global Governance Brief 2020/1 (2020), pp. 4–6.
European Commission, Circular Economy Action Plan: For a Cleaner and More Competitive Europe (2020), p. 6.
Appellate Body Report, United States – Import Prohibition of Certain Shrimp and Shrimp Products, wt/ds58/ab/R, 12 October 1998, para. 164.
See, for example, Nordic Council of Ministers, supra note 7, p. 75.
See, for example, Simon et al., supra note 7, pp. 34–36.