Part II - Tackling Multiple Pressures on the Oceans

2 Oceans and Climate Change Implications for UNCLOS and the UN Climate Regime

Christina Voigt

2.1 Introduction

The projected impacts of climate change on the oceans pose a significant threat to marine fisheries and biodiversity that might outpace other stress factors.¹ Increases in anthropogenic greenhouse gas (GHG) emissions and the consequential increase in GHG concentrations in the atmosphere have significant direct and indirect impacts on oceans and marine life.² Ocean warming might affect fish stocks, their health and migratory routes.³ Ocean acidification linked to increased uptake of CO₂ as well as de-oxygenation due to increasing ocean stratification and less ventilation between surface and deeper waters are another two phenomena that could affect certain marine species as well as entire marine ecosystems.⁴ At the same time, the global biomass of marine animals as well as the maximum catch potential of fisheries are both projected to decline.⁵ Rebuilding overexploited and depleted fisheries and managing them sustainably is already being addressed under the United Nations Convention on the Law of the Sea (UNCLOS),⁶ though much still needs to be done. However, using the oceans in a way that helps mitigate climate change provides an opportunity to address both concerns – climate change and declining ocean biomass – at the same time. It will require comprehensive governance structures for port, flag, coastal and market States, structures which also address the causes and impacts of climate change. This raises the question if and to what extent the international legal regime under UNCLOS and the UN climate regime can be coordinated and integrated, and how they can support one another in fully addressing the critical issue of the ‘oceans and climate change nexus’.

The United Nations Framework Convention on Climate Change (UNFCCC)⁷ was negotiated when the impacts of climate change on the oceans were not well understood and studied. However, we are facing the dilemma that, on the one hand, UNCLOS provides a comprehensive framework that is intended to cover all matters related to the oceans but does not expressly refer to climate change. On the other hand, we have an international regime – consisting of the UNFCCC, the Kyoto Protocol⁸ and the Paris Agreement⁹ – which is intended to cover matters related to climate change but which is territorial and atmospheric in scope, with very limited application to the ocean.

Addressing both concerns could open the way to opportunities for comprehensive and synergetic regulation. Such regulation contributes to strengthening the rule of law, in terms of enhancing effectiveness and legal certainty for marine protection. Compliance with both marine law and climate law could reinforce the targets and objectives of both regimes, so that the effects of climate change on the oceans decrease (for example, through setting climate targets) and the climate-mitigating capacity of oceans increases (for example, by conservation of a marine biology and ecosystems through marine protection measures). Appropriate synergy and coherence at a legal level between the marine and climate regimes will contribute to better protection of oceans in implementation at national, regional and local levels, thereby enhancing the rule of law for oceans.

2.2 Scientific Background

The interrelationship between the oceans and climate change is twofold. On the one hand, oceans are crucially important for regulating the global climate. They serve as the most important and biggest sink of anthropogenic CO₂, which is the strongest driver of climate change. Over millennia, they have been absorbing and storing CO₂ from the atmosphere, including about 30 per cent of emitted anthropogenic CO₂.¹⁰ Ocean water also absorbs large quantities of energy (i.e., heat). More than 90 per cent of the excess heat in the climate system accumulated between 1971 and 2010 was absorbed by ocean waters, with only 1 per cent stored in the atmosphere.

On the other hand, oceans are significantly affected by the impacts of climate change, which can already be observed. Ocean properties are changing due to climate change, especially temperature, pH, oxygen content, salinity, carbon, ice sheet and albedo. The Intergovernmental Panel on Climate Change (IPPC) in its 2019 special report on oceans notes with virtual certainty that oceans are warming and that the rate of warming has doubled since 1993.¹¹

The absorption of anthropogenic CO₂ is causing increasing surface acidification (decrease in pH). Moreover, de-oxygenation is occurring due to increasing ocean stratification, that is, reduced vertical exchanges of heat, salinity, oxygen, carbon and nutrients. Also, the conveyor belt of the Atlantic Meridional Overturning Circulation (AMOC) has started to weaken.¹²

Global sea levels are rising due to climate change caused by increasing ice loss from the Greenland and Antarctic ice sheets, as well as glaciers melting and ocean thermal expansion. From 2007 to 2016, the mass loss from the Antarctic ice sheet tripled compared to the previous decade, while loss from the Greenland ice sheet doubled and is accelerating. Ice loss from Antarctica has the potential to lead to a sea level rise of several metres within a few centuries. The IPCC warns that the changes already observed may mark the onset of irreversible ice sheet instability.

Ocean warming contributes to an overall decrease in maximum catch potential, compounding the impacts from illegal fishing and overfishing. This phenomenon also impacts biodiversity and ecosystem functioning, including impacts on catches, economic benefits, livelihoods, local and indigenous culture.¹³ Given the close interconnection between oceans and climate change, this chapter aims to analyse the mutual links between the international regulatory framework for the oceans as expressed in UNCLOS and the UN regulatory framework to address climate change contained in the UNFCCC and the Paris Agreement. Through both regimes, the ‘ocean-and-climate nexus’ is governed by the rule of law. Its effectiveness in addressing the challenges of climate change, however, depends on how well these two regimes ‘speak to each other’.

2.3 A Way Forward?

The IPCC offers a number of strong suggestions for responses to the current and projected scenarios. Foremost among them are deep and rapid GHG emission reductions in the coming decades¹⁴ and ambitious adaptation of low-lying and other vulnerable or exposed areas. A central aspect, reiterated in all the latest IPCC reports, as well as the Intergovernmental Science-Policy Platform on Biodiversity and Ecosystem Services (IPBES) report on biodiversity, is that such rapid and deep reductions in emissions are unprecedented and require transformative governance changes.¹⁵ The temporal scales of climate change impacts exceed the time horizons of most governance arrangements, which lack the ability to prepare for and respond to long-term changes. Governance arrangements such as marine protected areas, spatial plans and coastal management systems are largely ineffective to address such long-term challenges, as they are too fragmented across administrative boundaries and sectors to provide integrated responses to the cascading risks from climate change.¹⁶

However, these reports stress that such transformation requires the fundamental system-wide reorganization of all sectors and across economic, social and technological factors, including paradigms, goals and values. Both reports call for strengthening the global response and enhancing international cooperation. Climate change, global biodiversity loss and ocean impacts as collective action problems can only be effectively addressed through a system of international cooperation, management and implementation support, and through comprehensive and synergetic legislation. In other words, a crucial role exists for international law, and the rule of law, not only in creating a global level playing field that avoids free riding but also in creating the legal structure for a coordinated response commensurate with these global challenges.

2.4 Climate Change and the Law of the Sea (UNCLOS)

In ocean governance, what is needed is a profound economic and institutional transformative change to enable climate-resilient development pathways for the oceans. The IPCC calls for intensifying cooperation and coordination among governing authorities across scales, jurisdictions, sectors, policy domains and planning horizons in order to enable effective responses to ocean changes.¹⁷ This requires compatible and coherent legal frameworks.

Climate change impacts will affect marine life and biodiversity, fisheries, shipping routes and maritime zones. It is, therefore, opportune to assess to what extent climate change has been addressed within the legal framework of the law of the sea, or could be brought within its embrace. It might not have been the intention at the time of developing the UNCLOS, but climate change issues could be addressed through contemporary and dynamic interpretation.

The UN General Assembly has successively reiterated its serious concern over the current and projected adverse effects of climate change on the marine environment and marine biodiversity, including coral reefs as well as the vulnerability of the environment and the fragile ecosystems of the polar regions, emphasizing the urgency of addressing this issue.¹⁸ However, UNCLOS was negotiated during a period where concerns about climate change were not known or barely known. Consequently, despite the importance the Convention gave in Part XII to protection and preservation of the marine environment, understandably it does not explicitly refer to the adverse impacts of climate change on the ocean and the marine environment or the role that ocean governance could play in addressing climate change.

This situation does not mean that UNCLOS is not of relevance with respect to climate change. Under Article 192, States have the obligation to protect and preserve the marine environment. This applies to all areas of the oceans and to all impacts on the oceans. This obligation arguably also includes the duty to protect against climate change impacts. The Permanent Court of Arbitration, in the South China Sea Arbitration, stated clearly that the obligation to ‘protect’ the marine environment under UNCLOS includes protection from any future damage, while ‘preserve’ means to maintain or improve the existing condition of the marine environment. The Tribunal stated that these two elements included the obligation to take active measures and to prevent degradation of the existing marine environment.¹⁹

Such an approach would, at the very least, be applicable to the increased uptake of anthropogenic CO₂ leading to ocean acidification. Pollution, as widely defined in Article 1(1)(4) of UNCLOS, is ‘the introduction by man, directly or indirectly, of substances or energy 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’. Anthropogenic CO₂ fits the definition in UNCLOS and therefore would come within its scope of application.

Further, Article 194 sets out the duty to adopt necessary measures to prevent, reduce and control pollution from any source, including transboundary pollution. This is a duty on all States to adopt measures to prevent transboundary pollution from sources or activities under their jurisdiction or control. Furthermore, Article 194(5) includes the duty to protect rare or fragile ecosystems and habitat or depleted, threatened or endangered species and other forms of marine life. This would also include a duty to protect against the impacts of climate change. In sum, the argument is that anthropogenic CO₂ is a transboundary source of pollution and that Articles 192 and 194 include the duty to protect the marine environment against climate change impacts.

The standard of conduct under Article 194 was elaborated by the International Tribunal for the Law of the Sea (ITLOS), which recognized that use of the language ‘to ensure’ creates an obligation of due diligence.²⁰ Such standard means that States need to adopt appropriate rules and measures, exercise vigilance in their enforcement and monitor the activities of private and public operators. It is an obligation to ‘take all appropriate measures to enforce its relevant regulations on a public or private operator under its jurisdiction’²¹ and to ‘deploy adequate means, to exercise best possible efforts, to do the utmost, to obtain [the required result]’.²²

It remains, however, somewhat uncertain how far such duty imposes an obligation. For example, do States have a general due diligence obligation under Article 194 to regulate and control activities such as permitting GHG-emitting installations, for example, oil or gas-based power plants, oil extraction industries or coal mining, if such activities are carried out under their jurisdiction or control? Articles 207 and 212 focus, in particular, on pollution of the marine environment from land-based sources and through the atmosphere, respectively, requiring parties to ‘prevent, reduce, and control’ marine pollution from these sources. Again, the same pertinent questions arise here.

In sum, while UNCLOS contains no reference to the adverse impacts of climate change on the ocean and the marine environment, it is a matter of interpretation of the Convention to clarify the scope of existing duties.²³ While further normative clarification (or dynamic development) could be obtained through jurisprudence, for example, by an Advisory Opinion from the ITLOS, it is also a possibility to work on an implementing agreement, which could focus in particular on climate change-relevant aspects of the Convention, if member States so wanted.

Finally, the recent development of a new implementing agreement under UNCLOS to protect and conserve biological diversity beyond national jurisdiction (BBNJ) does (still) foresee a particular role of area-based management and environmental impact assessment in addressing climate change. The current draft negotiating text sets out as one of the guiding principles an approach that builds ecosystem resilience to the adverse effects of climate change and ocean acidification and restores ecosystem integrity.²⁴ In this context, area-based management tools, such as marine protected areas, should be established, inter alia, in order to rehabilitate and restore biodiversity and ecosystems. This might enhance their productivity and health and build resilience to stressors, such as those related to climate change, ocean acidification and marine pollution.²⁵ Climate impacts might also be considered part of ‘cumulative impacts’ on the same ecosystem and could fall under the scope of environmental impact assessments. Still, it remains to be seen to what extent parties will be willing to integrate adequate responses to climate change and its impacts in the BBNJ agreement.

2.5 UN Climate Change Regime and the Oceans

The UNFCCC establishes as its ultimate objective the stabilization of GHG concentrations in the atmosphere at a level that would prevent dangerous interference with the climate system.²⁶ In general, this includes the role of oceans in stabilizing atmospheric GHG concentrations. Accordingly, Article 4, paragraph 1(d) sets out the commitment of UNFCCC parties to ‘promote and cooperate in the conservation and enhancement, as appropriate, of sinks and reservoirs of … greenhouse gases … including biomass, forests and oceans as well as other terrestrial, coastal and marine ecosystems’. However, while the scope of the UNFCCC is arguably not limited to territorial emission, the rather general obligations of member States set out in Article 4 apply only to activities under their jurisdiction or control. While States could include ocean-based emissions or removals in their national plans, programs, policies or measures, the reality is that so far very few, have done so.

The Paris Agreement, adopted under the UNFCCC, recognizes in its preamble the importance of conservation and enhancement, as appropriate, of sinks and reservoirs of the greenhouse gases referred to in the UNFCCC, and explicitly notes the importance of ensuring the integrity of all ecosystems, including oceans, and protection of biodiversity. Its main goal is set out in Article 2, according to which, inter alia, the increase in the global average temperature should be limited to well below 2°C above pre-industrial levels, while pursuing efforts to limit the increase to 1.5°C.²⁷ Oceans play a significant part in the global climate system, as described previously. However, the measures that parties include in their Nationally Determined Contributions (NDCs) under the agreement, and will be accounted for and reported on, remain within parties’ territorial jurisdiction. The National GHG Inventory of each party only contains territorial GHG emissions and removals. It is therefore unclear how oceans – especially the high seas – fit into the scope of measures under the Paris Agreement.

However, as an exception to the territorial focus, inter-party tradable emission units can either increase or decrease the national volume of GHG emissions. Including cross-border carbon trading in NDCs, therefore, adds an ‘extra-national jurisdictional element’ to the scope of NDCs. Similarly, some of those parties that include REDD+ in their NDC also allow for cross-border transactions, thereby widening territorial capture to elements that lie outside the strict territorial jurisdiction of each party. Along the same lines, it is possible for a party to include ocean-based mitigation activities within its own jurisdiction or control, or implement activities jointly with other parties with respect to ocean-based climate change mitigation, for example, ocean fertilization or vessel-based direct air capture of CO2, or certain CCS activities.

The Paris Agreement further encourages parties, in Article 5, paragraph 1, ‘to take action to conserve and enhance, as appropriate, sinks and reservoirs of greenhouse gases as referred to in Article 4, paragraph 1(d), of the Convention, including forests’. Article 4, paragraph 1(d) of the UNFCCC refers to conservation and enhancement of sinks and reservoirs, including oceans, and coastal and marine ecosystems. Accordingly, there is a recognition of the important role of oceans as carbon sinks and reservoirs, but the challenge, as mentioned previously, is how to link the extra-jurisdictional scope of oceans to the NDCs by parties and to the atmospheric levels of GHG concentrations or temperature increases, as recognized in the context of the Convention and the Paris Agreement, respectively.

To sum up, it could be argued that the degree of consistency and synergy between the climate and ocean regimes is dynamic and invites further elaboration and rule development. For the ocean rule of law, this means that a dynamic interpretation of the existing rules is necessary in order to comprehensively address the role of ocean governance in addressing climate change. For the climate change regime, in turn, this means that the scope and potential for ocean-based solutions to climate change, their inclusion in NDCs as well as their robust and accurate reporting and accounting requires further consideration. Still, significant potential exists for synergies that could both improve the effectiveness of ocean governance as well as enhance the scope for climate change mitigation measures. The following section presents three implementation measures that could reinforce this synergy and provides some suggestions on how to recognize the role of oceans more effectively in climate change mitigation.

2.6 The Oceans as a Solution to Climate Change: Some Suggestions

Several suggestions have been made as to how the oceans can contribute to solving the climate challenge. Several options have recently been put forth by civil society,²⁸ which together could save the world 4Gt CO2 emissions yearly from 2030, and more than 11Gt in 2050. In the following sections, three examples are discussed in more detail.

2.6.1 Ocean-Based Renewable Energy

While recognizing that most emission reductions must happen from deep decarbonization of terrestrial activities, ocean-based activities can and should be included in the NDCs of parties to the Paris Agreement. While some parties have already included some marine activities and policies, more could follow suit with the next round of NDCs in 2025.

NDCs can play a critical role in supporting acceleration of renewable energy by sending clear, consistent signals to the private sector. Importantly, however, NDCs are to be implemented through effective domestic planning and regulatory as well as enforcement measures. By including ocean-based solutions in NDCs, greater legal and regulatory machinery will be set in motion. Also, reporting on the implementation and achievement of NDCs is mandatory under the Paris Agreement,²⁹ and all reports are subject to an independent technical expert review. NDCs can further help to stimulate further investment, research and development for less mature technologies such as tidal, current and geothermal energy.

A recent report by the World Research Institute suggests several options for including ocean-based renewable energy in new or updated NDCs, such as:

• Expanding and increasing the ambition of existing economy-wide GHG targets by including emission reductions from ocean-based renewable energy production.

• Defining capacity and generation targets for ocean-based renewable energy (e.g., offshore wind within Exclusive Economic Zones (EEZ), and tidal and wave energy). Such targets could be expressed as absolute quantities, as a percentage increase from current levels or as a share of the total energy or electricity mix.

• Committing to developing inclusive national marine spatial planning frameworks and integrated ocean management to map ocean-based activities and area-based management tools. This will help identify opportunities for expanding offshore renewable energy that balances the needs of other ocean users and sustainability of coastal and marine ecosystems.

• Committing to research and development to explore opportunities to align ocean-based renewable energy with efforts to decarbonize marine transport and aquaculture and support coastal and marine ecosystems.³⁰

Further examples might also include fixed and floating offshore wind and solar installations and ocean thermal energy conversion installations. This would help in addressing the significant gap between the aggregate effect of parties’ mitigation efforts and the emissions pathway needed to hold temperature increases to well below 2^oC above pre-industrial levels and in pursuing efforts to limit temperature increases to 1.5^oC.³¹ Moreover, parties to the Paris Agreement are expected to reflect their highest possible ambition in their NDC³² – a due diligence requirement, which means taking all appropriate measures, which for many coastal states would include ocean-based activities.

2.6.2 Decarbonizing Ocean-Based Transport

Decarbonization of ocean transport is another way by which ocean-related aspects might contribute to climate solutions. Ocean transport currently makes up about 3 per cent of global GHG emissions, with a rising trend.³³ Increased energy efficiency, maximizing the overall operational efficiency of new and existing ships and promoting or prescribing low and zero carbon fuels could mitigate this contribution. International work through the International Maritime Organization and regional organizations might be necessary, which should also increase possibilities for enforcement of norms.

Additionally, the inclusion of ocean transport in parties’ NDCs could be an effective way forward. This might involve, for example, setting a specific GHG target for domestic shipping and domestic fleets; aiming to phase out GHG emissions from coastal passenger transport through technology transfer and research and development in battery- and wind-powered ferries; developing cross-sectoral decarbonization plans that link strategies to transition land-based energy sources and supply chains with ports and marine fleets; or financing technology transfer and research and development for the transition to zero-emission passenger and freight transport.³⁴

2.6.3 Coastal and Marine Ecosystem Protection

Protecting coastal and marine ecosystems is necessary to maintain and enhance the CO2 and reservoir capacities of oceans. This might include enhancing protection measures for mangroves, kelp forests, seaweed beds under the CBD and other legal instruments, and inclusion of such ‘marine-based natural solutions’ as a nature-based solution in parties’ NDCs.³⁵

Moreover, providing incentives for ‘blue carbon’ similar to ‘green carbon’ under REDD+ could be a necessary tool to engage more States in ocean-based natural protection for climate purposes. This might require enhancing carbon accounting for mangroves, sea grass and seaweed or kelp forests and other ocean sinks within national GHG Inventories, and the improvement of monitoring technologies and capacities for ‘blue carbon’ (under the UNFCCC and Paris Agreement).³⁶

National and global mapping of blue carbon ecosystems (especially seaweed) and development of legal mechanisms for long-term preservation of blue carbon are significant steps that are necessary in order to include the conservation and enhancement of ocean sinks and reservoirs in the scope of nature-based solutions in NDCs.

2.6.4 Management of Fisheries and Aquaculture

Another important aspect is elimination of harmful subsidies³⁷ and strengthening of tools to eliminate illegal, unreported and unregulated (IUU) fishing.³⁸ The climate challenge is significant and the role of oceans as the real ‘lungs of the Earth’ is crucial in maintaining a carbon balance. This understanding, while backed up by science, is only slowly moving into political decisions and appropriate legal responses.

One principal way in which ocean-based foods can contribute significantly to climate change mitigation is in reduction of the carbon footprint of ocean-derived food production, especially fisheries. For example, changing fuel sources in vessels and technological advances in production techniques can alter the emissions associated with seafood from both fisheries and ocean-based aquaculture. However, reducing emissions by improving fish catch efficiency as well as increasing fishery yields will require significant governance changes, including design of appropriate international and regional legal frameworks. In this context, existing tools within the international framework to address IUU fishing should be strengthened and streamlined into a global framework.³⁹

2.7 Conclusions

Oceans are under threat from climate change, and the question is whether the interrelated ocean and climate change dynamics have been sufficiently recognized in UNCLOS and UN climate change law. So far, there is no clear legal regime under international law addressing both climate change and the oceans in a comprehensive manner. The UN climate change regime is severely limited in its capacity to address ocean issues because of its terrestrial and atmospheric focus. The UN regime for the Law of the Sea already has certain components and established obligations for its parties, including for land-based source activities that cause ocean pollution. The relatively weak legal synergy between the two regimes could pose a challenge to the rule of law for protection of oceans and the climate system; if not improved.

As this chapter has shown, ample possibility exists for parties to include ocean-related mitigation aspects in their NDCs under the Paris Agreement. The advantage of such inclusion would not only be that oceans would become part and parcel of parties’ climate strategies. In addition, the inclusion of ocean transport, blue carbon, fishery regulation and/or ocean-based renewable energy and other ocean-based climate mitigation activities in NDCs would also require parties to adopt effective domestic implementation measures, such as regulations, laws, acts and other implementation instruments as well as ensure their compliance and enforcement.⁴⁰ Furthermore, parties would also be under the legal obligation to provide a biennial transparency report on the implementation and achievement of their NDCs, which would be public and accessible to everyone.⁴¹ In this report, parties need to provide information on legal, institutional, administrative and procedural arrangements for domestic implementation, monitoring, reporting and achievement as well as stakeholder engagement.⁴² In other words, inclusion of ocean-based mitigation measures in an NDC would draw ocean governance under the transparency requirements of the Paris Agreement, enhancing their visibility, legitimacy and, potentially, coordination.

However, further legal developments in international law (i.e., law-making, jurisprudence) might be necessary to adequately reflect the important role of oceans in the global governance framework, in order to address climate change and its impacts. The current BBNJ negotiations could provide a part of this framework by setting out criteria for identifying areas for area-based management, criteria that consider the carbon density and climate relevance of certain marine and coastal ecosystems, such as kelp forests and seaweed beds.

An alternative avenue is dynamic development and interpretation of UNCLOS provisions with relevance to climate change or consideration of a new implementing agreement under UNCLOS, which provides for clarification and specification of States’ duties with respect to climate change and its impact on oceans. In the absence of such development, or in addition to it, it is possible to seek an advisory opinion from, for example, ITLOS on the obligation of States with respect to climate change impacts on the oceans.

The solutions offered by the oceans should, and most likely must, play a more prominent role in climate policy and regulation. In order to achieve the global goal of climate neutrality around 2050 and global net-negative emissions thereafter until the end of this century,⁴³ oceans form an indispensable part of the solution. While more and more States are currently adopting climate neutrality targets, their reliance on ocean-based measures is expected to rise. However, ocean-based solutions are not the whole solution. They must happen alongside, but not replace, rapid, deep and sustained emission reductions in terrestrial energy sectors and from land-based sources, as well as protection of natural terrestrial sinks.

Holding temperature increases to well below 2^oC requires unprecedented action in scope and scale. This is a call for innovation and change – including how to integrate two-thirds of this planet into the solution.

3 Controlling GHG Emissions from Shipping The Role, Relevance and Fitness for Purpose of UNCLOS

David Testa

3.1 Introduction

At less than 3 per cent of global Greenhouse Gas (GHG) emissions,¹ it may be tempting to argue that shipping emissions do not constitute a particularly alarming or significant component of the global climate change problem. This would be a mistaken approach. According to one estimate, if the international shipping industry were a country, it would be ranked as the sixth largest emitter of energy-related CO₂, just above Germany.² Moreover, according to the International Maritime Organisation (IMO) Fourth GHG Study, maritime CO₂ emissions are projected to increase considerably in the coming decades. Projections vary widely, depending on future economic and energy developments, but the IMO predicts that emissions are projected to increase from about 90 per cent of 2008 emissions in 2018 to 90–130 per cent of 2008 emissions by 2050.³ Given these statistics and projections, there can be no doubt that GHG emissions from shipping need to be decisively addressed as part of international efforts to combat climate change.

Considering that the United Nations Convention on the Law of the Sea (UNCLOS)⁴ was negotiated between 1972 and 1982, it should come as no surprise that the Convention makes no express reference to climate change. This does not mean that UNCLOS has no role to play in the context of climate change generally or in the more specific context of efforts to regulate GHG emissions from shipping. The drafters of UNCLOS intended to establish a comprehensive regime for the oceans. This is clear from the Convention’s preamble, which speaks of a desire to create:

… 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 environment.⁵

While the aspiration to comprehensive coverage is clear, when applied to UNCLOS comprehensiveness is a term that must be understood in a limited sense; it denotes the sheer breadth of coverage, rather than coverage in considerable detail of all substantive matters that may conceivably arise in practice.⁶ Such detail would have rendered UNCLOS an unwieldy document and would have made the negotiation process immeasurably harder. A different approach was adopted by the Convention’s drafters. The basic rules and the jurisdictional framework are authoritatively set out in UNCLOS, whereas matters of substantive technical detail are left to be fleshed out in a variety of international instruments such as the International Convention for the Prevention of Pollution by Ships (MARPOL).⁷ The extent of development that can be registered therefore depends on the willingness of States to be proactive in developing the relevant rules and standards that are contained in instruments associated with UNCLOS, such as the MARPOL Convention.

This chapter examines the role, relevance and fitness for purpose of UNCLOS in relation to ongoing efforts to tackle GHG emissions from shipping. It asks whether UNCLOS is adequate and considers what further steps need to be taken. Following this introduction, Sections 3.2 and 3.3 provide a brief overview of the UN Climate Change Regime and of the Initial IMO Strategy on Reduction of GHG Emissions from Ships. Section 3.4 examines UNCLOS’s various points of relevance. It starts with a brief examination of the Convention definition of ‘marine pollution’ and proceeds with an analysis of Articles 192 and 194 and of Articles 211 and 212, which establish important obligations for States to regulate pollution from vessels and pollution from or through the atmosphere. It then examines flag, coastal and port State jurisdiction to regulate GHG emissions from shipping. Section 3.5 provides some concluding comments and considers whether UNCLOS can be considered as fit for purpose in this context.

3.2 The UN Climate Change Regime

Efforts to reduce GHG emissions from shipping are happening as part of a concerted global effort to reduce GHG emissions generally. Alongside UNCLOS and specialist shipping instruments such as MARPOL, a distinct yet related regime has developed to address climate change. While an in-depth examination of this regime would be well beyond the scope of this chapter, a brief overview must be provided to contextualise efforts to reduce GHG emissions from shipping as well as to better understand external pressures that are being faced by the shipping industry.

The United Nations Framework Convention on Climate Change (UNFCCC)⁸ is ‘the primary international, intergovernmental forum for negotiating the global response to climate change’.⁹ Its overall objective is to ‘[stabilize] greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system’.¹⁰ The Kyoto Protocol¹¹ was the first substantive international agreement to be adopted under the UNFCCC. It established binding emissions reduction targets for the developed countries listed in Annex I of the UNFCCC.¹² Article 2(2) of the Kyoto Protocol obliges Annex 1 parties to ‘pursue limitation or reduction of emissions of greenhouse gases … from aviation and marine bunker fuels, working through the International Civil Aviation Organization and the International Maritime Organization, respectively’.¹³

The Paris Agreement¹⁴ entered into force on 4 November 2016. It brings all State parties into a common cause to undertake ambitious efforts to combat climate change. The parties agreed a long-term goal to hold the increase in the global average temperature to well below 2°C above pre-industrial levels and to pursue efforts to limit the temperature increase to 1.5°C above pre-industrial levels.¹⁵ Each State must prepare, communicate and maintain successive Nationally Determined Contributions (NDCs) that it intends to achieve.¹⁶ NDCs are to be strengthened every five years in light of a global stocktaking exercise undertaken by the meeting of the parties to the Paris Agreement.¹⁷

3.3 The Initial IMO Strategy on Reduction of GHG Emissions from Ships

The IMO has been dealing with the question of air pollution from ships in some form or other since the 1980s.¹⁸ Central to the IMO’s efforts in this regard is the MARPOL Convention. Annex VI of the convention, which deals with the Prevention of Air Pollution from Ships, is the most relevant. It regulates emissions of sulphur oxide and nitrogen oxide, ozone-depleting substances, volatile organic compounds and shipboard incineration.¹⁹ In 2011, the IMO’s Marine Environment Protection Committee (MEPC) adopted a package of technical measures for new ships and operational reduction measures for all ships. This package of measures was included in a new Chapter 4 of MARPOL Annex VI, titled ‘Regulations on Energy Efficiency for Ships’, and includes two main measures: the Energy Efficiency Design Index (EEDI) and the Ship Energy Efficiency Plan (SEEMP). The EEDI aims to stimulate continued innovation and technical development of all those components that influence the fuel efficiency of a ship from its design stage. The SEEMP establishes a mechanism for shipowners to improve the energy efficiency of both new and existing ships using operational measures such as speed optimisation and just-in-time arrival in ports.

On 13 April 2018, the MEPC adopted the Initial IMO Strategy on Reduction of GHG Emissions from Ships.²⁰ The Strategy identifies three levels of ambition. First, the carbon intensity of ships is to decline through implementation of further phases of the Energy Efficiency Design Index (EEDI) for new ships. Second, the carbon intensity of international shipping is to decline to reduce average CO₂ emissions by at least 40 per cent by 2030 while pursuing efforts to reduce average CO₂ emissions towards 70 per cent by 2050, compared to 2008. Third, to peak GHG emissions from international shipping as soon as possible and to reduce the total annual GHG emissions by at least 50 per cent by 2050 compared to 2008 while pursuing efforts towards phasing them out.

The Initial IMO Strategy signals a willingness to address GHG emissions from international shipping and, for the first time, establishes levels of ambition in this regard. At the same time, there can be no doubts about the fact that the Strategy is an initial strategy; a political document of an aspirational nature that needs to be followed up by substantive action and measures over the coming years. The Strategy has also been criticised for not being ambitious enough. Doelle and Chircop, for instance, have argued that ‘[i]t is hard to see how full decarbonization well after 2050 can be considered a fair contribution to the long-term goals of the Paris Agreement, which ultimately calls for efforts to keep global average temperature increases to within 1.5% of pre-industrial levels’.²¹ The IMO Strategy, like current nationally stated mitigation ambitions submitted under the Paris Agreement,²² will therefore need to be revised if it is to contribute fairly to and be consistent with the Paris Agreement temperature goals.

3.4 The Law of the Sea Convention

3.4.1 Pollution of the Marine Environment

Article 1(1)(4) of the Convention defines ‘pollution of the marine environment’ as:

the introduction by man, directly or indirectly, of substances or energy 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, 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.²³

The UNCLOS definition of marine pollution is a wide and comprehensive one that is subject to evolutionary interpretation.²⁴ By design, it ‘provides an open definition on marine pollution which may include all sources of marine pollution in the present and future’.²⁵

Considering that the definition encompasses the introduction of both ‘substances’ and ‘energy’ into the marine environment, it is difficult to argue in good faith that GHG emissions from shipping do not constitute ‘pollution of the marine environment’. The warming of the oceans introduces ‘energy’ into the marine environment that results or is likely to result in deleterious effects. The introduction of CO₂ into the water column results in deleterious effects through ocean acidification. Given all this, Bodansky finds no difficulty in concluding that ‘emissions from maritime shipping clearly constitute “pollution of the marine environment” within the meaning of Article 1.1(4)’,²⁶ and similar views have been expressed by other authors.²⁷ Since GHG emissions therefore amount to ‘pollution of the marine environment’, the question that must be answered next is: which precise provisions of the Convention are engaged by GHG emissions and what are the implications of these provisions in practice?

3.4.2 General Provisions: Articles 192 and 194

Article 192 establishes a general obligation on all States to protect and preserve the marine environment. As noted in the South China Sea arbitration, ‘the content of the general obligation in Article 192 is further detailed in the subsequent provisions of Part XII … as well as by reference to specific obligations set out in other international agreements’.²⁸ On this basis, in the South China Sea arbitration, the arbitral tribunal integrated the definition of ‘ecosystem’ from the Convention on Biological Diversity²⁹ as well as aspects of the CITES Convention³⁰ into its reasoning, enabling it to reach the conclusion that ‘Article 192 includes a due diligence obligation to prevent the harvesting of species that are recognised internationally as being at risk of extinction and requiring international protection’.³¹ In a similar manner, it is submitted that Article 192 serves to bring the UN Climate Change Regime into the scope of UNCLOS and that the Paris Agreement effectively sets the standard for giving effect to Article 192 insofar as State obligations in the context of climate change are concerned.³² This is in line with the principle of systemic integration enshrined in Article 31(3)(c) of the Vienna Convention on the Law of Treaties (VCLT).³³ According to Article 31(3)(c), in interpreting a treaty, together with the context, account shall be taken of ‘any relevant rules of international law applicable in the relations between the parties’.³⁴ As Bowman observes, what systemic integration requires is that ‘interpretation of each individual provision … be woven into the broader fabric not only of the treaty as a whole, but of the wider legal system’.³⁵

The nature of the Article 192 obligation to protect and preserve the marine environment as a due diligence obligation can have important ramifications in the context of tackling GHG emissions from shipping. As affirmed in the Responsibilities in the Area opinion, the concept of due diligence can ‘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’.³⁶ Paragraph 7 of the IMO GHG Strategy establishes an obligation for the Strategy to be revised every five years after its final adoption in 2023. Re-assessment should not be restricted to aspects of the Strategy such as short, medium and long-term measures but should include careful consideration of all the relevant elements, including the all-important levels of ambition. These should be re-evaluated considering the latest scientific and technical knowledge available and maintained in line with the global effort under the Paris Agreement to keep temperature increases to within 1.5 per cent of pre-industrial levels.

Article 194(1) obliges States to take all measures necessary to prevent, reduce and control pollution of the marine environment from any source. As Boyle notes, although Article 194 makes no express reference to GHG emissions, ‘it is entirely possible to read Article 194(3) as covering atmospheric depositions of CO₂ resulting in marine pollution’.³⁷ Atmospheric pollution is mentioned specifically in Article 194(3)(a), which provides that measures taken pursuant to Part XII must include measures designed to minimise to the fullest extent possible ‘the release of toxic, harmful or noxious substances, especially those which are persistent, from land-based sources, from or through the atmosphere or by dumping’.³⁸ Article 194(3)(b) then tackles vessel-source pollution specifically by requiring that measures taken pursuant to Part XII must include measures designed to minimise to the fullest extent possible pollution from vessels.³⁹

3.4.3 More Specific Provisions: Articles 211 and 212

Article 211 expands on the obligation contained in Article 194(3)(b) and addresses both national and international law-making. Insofar as international law-making is concerned, Article 211(1) provides that ‘States, acting through the competent international organization or general diplomatic conference, shall establish international rules and standards to prevent, reduce and control pollution of the marine environment from vessels’.⁴⁰ Article 211(1) requires that ‘[s]uch rules and standards … be re-examined from time to time as necessary’. The obligation to re-examine rules is an important one that complements the construal of Article 192 in the preceding section as an obligation of due diligence. Article 211(2) deals with national law-making and provides that:

States shall adopt laws and regulations for the prevention, reduction and control of pollution of the marine environment from vessels flying their flag or of their registry. Such laws and regulations 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.⁴¹

Article 211(2) establishes an important prescriptive obligation in relation to flag States. Given the phrasing of Article 211(2), a crucial question is whether the Regulations on Energy Efficiency for Ships that are contained in MARPOL Annex VI Chapter 4 can be considered as Generally Accepted International Rules and Standards (GAIRS). A problem with MARPOL Annex VI Chapter 4 is that the relevant amending resolution in terms of which Chapter 4 was added to Annex VI was not adopted by consensus, as is typically the case with IMO decisions, but by a vote in which forty-nine out of fifty-nine MARPOL State parties at the time voted in favour, but Brazil, Chile, China, Kuwait and Saudi Arabia voted against.⁴² The fact that five States with a significant number of ships in their registries voted against gives Harrison reason to believe that the relevant Regulations ‘may not qualify as being generally accepted for the purposes of Article 211(2)’.⁴³ This may have been true at the time of adoption but, as has been noted in other contexts, the fact that a number of States at some point opposed a given measure does not disqualify the same measure from becoming generally accepted at a later point.⁴⁴ All those States that opposed the adoption of Chapter 4 eventually ratified Annex VI,⁴⁵ and, as of October 2019, MARPOL Annex VI has ninety-five contracting parties representing 96.71 per cent of world tonnage between them.⁴⁶ It is therefore submitted that the energy efficiency regulations contained in MARPOL Annex VI Chapter 4 can be considered as GAIRS for the purpose of Article 211(2). Whether it will be possible to state the same for future rules on GHG emissions from shipping will largely depend on the circumstances of their adoption.

While Article 211(2) establishes a prescriptive obligation for flag States, Article 217 establishes a corresponding obligation of enforcement: ‘States shall ensure compliance by vessels flying their flag or of their registry with applicable international rules and standards, established through the competent international organization or general diplomatic conference, and with their laws and regulations adopted in accordance with this Convention for the prevention, reduction and control of pollution of the marine environment from vessels …’⁴⁷

Article 212(3) requires States to ‘endeavour to establish global and regional rules, standards and recommended practices and procedures to prevent, reduce and control [atmospheric] pollution’.⁴⁸ Insofar as atmospheric pollution from ships in particular is concerned, UNCLOS State parties have fulfilled this responsibility through the adoption of MARPOL Annex VI. In relation to national law-making, Article 212(1) requires States to: ‘adopt laws and regulations to prevent, reduce and control pollution of the marine environment from or through the atmosphere, applicable to the air space under their sovereignty and to vessels flying their flag or vessels or aircraft of their registry, taking into account internationally agreed rules, standards and recommended practices and procedures’.⁴⁹

Two main distinctions exist between Article 211(2) and Article 212(1). First, Article 212(1) refers not to GAIRS but to ‘internationally agreed rules, standards and recommended practices and procedures’.⁵⁰ This means that ‘Article 212(1) does not require a rule or standard to be “generally accepted” before it is relevant’.⁵¹ Second, unlike Article 211(2), which requires flag States to adopt laws and regulations that ‘shall at least have the same effect as that of generally accepted international rules and standards’, Article 212(1) requires States to ‘tak[e] into account internationally agreed rules, standards and recommended practices and procedures’. As a result, ‘States are free to adopt less or more stringent national instruments under this reference’.⁵² As argued above, there can be little doubt today that the rules contained in MARPOL Annex VI Chapter 4 are generally accepted. That said, it is not entirely possible to exclude the possibility of such doubts resurfacing in relation to future rules, especially if the IMO will once again have to resort to majority voting. In such an eventuality, Article 212 will ensure that States are obliged to ‘tak[e] into account internationally agreed rules, standards and recommended practices and procedures’, at least until clarity can be obtained about whether the relevant rules can be considered as GAIRS under Article 211(2).

Article 222 requires States to ‘enforce, within the air space under their sovereignty or with regard to vessels flying their flag or vessels or aircraft of their registry, their laws and regulations adopted in accordance with article 212, paragraph 1 …’⁵³

3.4.4 Prescriptive and Enforcement Jurisdiction

The forthcoming sub-sections analyse the jurisdiction and obligations pertaining to flag, coastal and port States under UNCLOS in regard to GHG emissions from ships.

3.4.4.1 Flag State Jurisdiction

Flag States have primary jurisdiction over their vessels, and, on the high seas, they enjoy practically exclusive jurisdiction.⁵⁴ The privileged position that flag States enjoy is subject to corresponding duties. In Article 94(1) UNCLOS obliges flag States to ‘effectively exercise [their] jurisdiction and control in administrative, technical and social matters over ships flying [their] flag’.⁵⁵

The enforcement jurisdiction of flag States is regulated by Article 217, which requires States to ‘ensure compliance by vessels flying their flag … with applicable international rules and standards, established through the competent international organization or general diplomatic conference, and with their laws and regulations adopted in accordance with this Convention for the prevention, reduction and control of pollution of the marine environment from vessels … ’⁵⁶ Flag States are obliged to ensure such enforcement irrespective of where a violation occurs.⁵⁷ Article 217 establishes an obligation of due diligence. As the ITLOS Seabed Disputes Chamber held in the Responsibilities in the Area Opinion, an obligation of due diligence is an ‘obligation to deploy adequate means, to exercise best possible efforts, to do the utmost, to obtain this result … this obligation may be characterized as an obligation “of conduct” and not “of result”’.⁵⁸ In practice, flag States fulfil their enforcement obligations under Article 217 by issuing certificates indicating compliance with the relevant rules and regulations and by investigating and prosecuting suspected infringements of international standards.⁵⁹

Doubts have often been expressed about the efficacy of flag State control. Effective enforcement of the relevant regulations can be costly, and some flag States may be primarily interested in the registration fees and taxes that they obtain from their ship registries. UNCLOS seeks to deal with flag State failure to exercise effective jurisdiction and control over its vessels primarily through Article 94(6), which provides that ‘[a] State which has clear grounds to believe that proper jurisdiction and control with respect to a ship have not been exercised may report the facts to the flag State’.⁶⁰ A flag State that receives such a report is obliged to investigate the matter and to take any remedial action that may be necessary.⁶¹ Moreover, according to Article 211(7), the flag State must promptly inform the requesting State and the competent international organisation of the action taken and its outcome.⁶² If a reporting State remains unsatisfied with flag State action, it will have the option of instituting dispute settlement proceedings against the flag State in accordance with the dispute settlement provisions of UNCLOS.⁶³ In practice, however, ‘there are no cases in which a flag State has been held to account in this manner, and the effect of these procedures has thus been limited’.⁶⁴

3.4.4.2 Coastal State Jurisdiction

Territorial Sea

In the territorial Sea, a coastal State may adopt laws and regulations relating to preservation of the environment of the coastal State and prevention, reduction and control of pollution thereof.⁶⁵ This right is considerably restricted by Article 21(2), which prescribes that such laws and regulations ‘shall not apply to the design, construction, manning or equipment of foreign ships unless they are giving effect to [GAIRS]’.⁶⁶ Chircop et al. argue that ‘[t]he logical consequence [of this] is that unilateral rules and standards on atmospheric emissions inconsistent with MARPOL Annex VI may not be legislated and enforced’.⁶⁷ While this is generally correct, there appears to be no reason why a coastal State should not be able to use the prescriptive jurisdiction that is conferred on it by Article 21 to unilaterally adopt operational measures (such as speed reduction requirements) to reduce GHG emissions from ships in its territorial sea.

According to Article 19, ‘any act of wilful and serious pollution’⁶⁸ contrary to the Convention strips passage of its innocent character⁶⁹ and can be the subject of coastal State enforcement jurisdiction.⁷⁰ UNCLOS does not offer any guidance as to how the terms ‘wilful’ and ‘serious’ are to be interpreted. Whether pollution is serious or not will to some extent need to be determined on a case-by-case basis,⁷¹ but it is submitted that an infringement of rules on atmospheric emissions from ships is not the best example of an act of pollution serious enough to render passage non-innocent under Article 19 of UNCLOS.⁷² In practice, and unless there are particularly compelling circumstances, States are likely to be reluctant to take enforcement action in the territorial sea for fear of unjustifiably interfering with innocent passage and will likely consider port State jurisdiction as a safer and more appropriate way to deal with rules on atmospheric pollution from ships.

Exclusive Economic Zone

The general rule in regard to prescriptive coastal State jurisdiction to prevent vessel-source pollution in the Exclusive Economic Zone (EEZ) is set out in Article 211(5), which determines that coastal States ‘… may adopt laws and regulations for the prevention, reduction and control of pollution from vessels conforming to and giving effect to generally accepted international rules and standards established through the competent international organisation or general diplomatic conference’.⁷³ In requiring domestic legislation to conform and give effect to Generally Accepted International Rules and Standards (GAIRS), Article 211(5) limits the prescriptive jurisdiction of coastal States and reaffirms the pre-eminence of the international level for rule-setting. The implication of Article 211(5) in the case of GHG emissions from ships is that the prescriptive entitlement of coastal States is presently restricted to incorporating the provisions of MARPOL Annex VI into their domestic law and to making the said provisions applicable to their respective EEZs.

Article 220 provides coastal States with graduated enforcement competence in the EEZ proportionate to the perceived severity of pollution damage involved.⁷⁴ An infringement of rules on atmospheric pollution from vessels cannot realistically be classified as a discharge ‘causing major damage or threat of major damage to the coastline’⁷⁵ and it is unlikely that such an infringement would ordinarily be considered as ‘causing or threatening significant pollution of the marine environment’.⁷⁶ It would therefore appear that, insofar as GHG emissions from ships are concerned, the coastal State’s enforcement powers in the EEZ are in practice restricted to requesting information from a vessel, and this only where there are clear grounds for believing that the vessel has committed a violation of applicable international rules and standards.

3.4.4.3 Port State Jurisdiction

Article 218(1) establishes the general principle of port State enforcement of international rules and standards.⁷⁷ When a vessel is voluntarily within a port or at an offshore terminal of a State, that State may undertake investigations and, where the evidence so warrants, institute proceedings in respect of any discharge from that vessel outside the internal waters, territorial sea or EEZ of that State in violation of applicable international rules and standards.⁷⁸

Although the term ‘discharge’ is nowhere defined in UNCLOS, it has been suggested⁷⁹ that this term should be interpreted by reference to MARPOL, which defines it as ‘any release howsoever caused from a ship and includes any escape, disposal, spilling, leaking, pumping, emitting or emptying’.⁸⁰ This is a wide definition that encompasses accidental as well as operational pollution. Port States are therefore entitled to exercise extraterritorial jurisdiction in relation to discharge infringements caused by the emission of substances such as sulphur and nitrogen dioxide. It is good to keep in mind, however, that in practice port States may be reluctant to initiate costly legal proceedings and may in any case not be in a position to gather strong enough evidence to prosecute.

In addition to the jurisdiction that is made available by Article 218, States have a largely unfettered⁸¹ right to deny vessels entry into their ports. On the basis of the reasoning that ‘who can do more can also do less’,⁸² it is possible to take a wider view of port-State jurisdiction and to consider it as including a right to prescribe and enforce conditions for entry. The existence of this right is confirmed by Article 211(3) of UNCLOS, which requires States that establish requirements for the prevention, reduction and control of marine pollution as a condition for the entry of foreign vessels into their ports or internal waters to publicise such requirements and to communicate them to the competent international organisation.⁸³ Requirements for entry into ports need to be adopted on a non-discriminatory basis⁸⁴ and in good faith.⁸⁵

3.4.4.4 Port State Control

Port State control is a proactive and preventive mechanism whereby port States verify whether a given vessel’s condition and its documentation comply with international rules and standards. Unlike port State jurisdiction proper, port State control is not geared towards institution of proceedings but is restricted to taking administrative measures of verification, potentially including detention of the vessel.

The conduct of port State control inspections is envisaged by MARPOL, Article 5(2) of which provides that any such inspection ‘shall be limited to verifying that there is on board a valid certificate, unless there are clear grounds for believing that the condition of the ship or its equipment does not correspond substantially with the particulars of that’.⁸⁶ In that case, or if the ship does not carry a valid certificate, the port State ‘shall take such steps as will ensure that the ship shall not sail until it can proceed to sea without presenting an unreasonable threat of harm to the marine environment’.⁸⁷ More specific rules for port State control on Annex VI requirements are set out in Regulations 10 and 11 of Annex VI. Port State control is also envisaged by and consistent with the Law of the Sea Convention.⁸⁸

3.5 Fitness for Purpose and the Way Ahead

It is appropriate to conclude this chapter by considering whether UNCLOS can be considered as ‘fit for purpose’. The answer to this question depends largely on the purpose that we expect UNCLOS to fulfil.

As it does in other contexts, in the context of GHG emissions from shipping UNCLOS adequately fulfils its designated function as a constitution for the oceans. This is evident in several ways. First, as seen in Section 3.4.1, the Convention provides a flexible definition of marine pollution that comfortably encompasses GHG emissions from shipping. Second, the Convention is conducive to harmonious coexistence between the different regimes that apply in this area. Article 192 allows for systemic integration of the UN climate change regime into the scope of the Convention, with the Paris Agreement effectively setting the standard for giving effect to Article 192 insofar as State obligations in the context of climate change are concerned.⁸⁹ Third, the Convention establishes clear rules in relation to flag, coastal and port State jurisdiction.⁹⁰ Flag and port State jurisdiction (including port State control) are arguably the two most important forms of jurisdiction for successful implementation of existing and future measures.

But if we expect UNCLOS to be a comprehensive solution on its own, then we will invariably be disappointed. This should not be surprising. The basic rules that are set out in UNCLOS were by design intended to be complemented by more comprehensive and detailed technical rules and regulations. This is at once an advantage of UNCLOS – in light of the flexibility and dynamism that it allows – and a potential pitfall of long-term stagnation as a result of State inaction.

The IMO’s Initial Strategy is very much a tentative and preliminary step towards giving meaningful content and substance to UNCLOS’s general provisions. Moving ahead, it is clear, however, that the Strategy will need to be followed up by substantive GHG emission reduction measures that are sufficiently ambitious in nature. In line with UNCLOS, these measures will need to be systemically integrated with the wider international environmental law framework and will need to be informed by the relevant goals under the UN Climate Change regime. UNCLOS offers the basic rules, the necessary structure and flexibility to deal with today’s environmental problems, including GHG emission from ships, but it is up to the international community to make use of this flexibility and to fulfil common and individual obligations under UNCLOS to develop and then enforce adequate rules and standards. Only in this way can an effective regime for GHG emissions reduction in shipping be established and the rule of law truly be allowed to prevail.

4 An International Legal Framework for Marine Plastics Pollution Time for a Change to Regulate the Lifecycle of Plastics

Dawoon Jung

4.1 Introduction

Plastics have become a popular material for use in a wide range of applications due to their characteristics of being safe, durable, inexpensive, and capable of being formed into a great variety of shapes. As a result of the explosion in the use of single-use and disposable plastics, the amount of plastic waste discharged into the oceans has become one of the most pressing environmental issues of our time. More than eight million tonnes of plastic waste are discarded into the oceans every year. And with the ever-increasing global consumption of plastic, research suggests that the oceans could contain, by weight, more plastic than fish by 2050.¹ Indeed, the Covid-19 pandemic has resulted in an additional issue with regard to marine plastics waste. The widespread use of single-use plastic products (e.g., masks and gloves) to provide protection against the spread of this infectious disease has generated and continues to generate millions of tons of plastic waste.²

Marine plastic litter and microplastics have become serious threats to the marine environment.³ For example, marine species are suffering from entanglement, ingestion of plastic chemical substances and destruction of their marine habitats. Microplastics, which are fragments of plastic less than 5 mm in size, raise additional concerns. They cause potential threats not only to marine species but also to human health, via the food chain. The non-degradable nature of plastics and the ability of plastic waste to travel long distances across the oceans from its origin can also cause a serious issue. The Great Pacific garbage patch is an example of this, as it comprises a floating plastic accumulation far from any point of origin, which is more than 1.6 million square km in size and contains around 80,000 tonnes of plastic.⁴

Whilst a number of treaties and legal instruments deal with marine plastics pollution, nevertheless, millions of tons of marine plastic waste are being discharged into the oceans on a continuous basis. This raises the question whether these regulations are adequate to address the situation, or whether the extent of plastics pollution taking place is due to poor implementation of these existing instruments.⁵ The rule of law, an indispensable foundation for ocean governance, requires both legal certainty in law-making and also effective implementation.⁶ Thus, the problem of marine plastics pollution raises a challenge in terms of maintenance of the rule of law. This chapter will examine how the rule of law could be enhanced in relation to regulation of marine plastics and microplastics pollution. It will provide an overview of the current legal framework that addresses marine plastics and microplastics and analyses what gaps remain within it. Then it will discuss how to enhance the current legal framework to promote the rule of law.

4.2 The Current Legal Framework Governing Marine Plastic Litter and Microplastics

4.2.1 Fragmented Nature of International Instruments

No international treaty has the primary objective of preventing and regulating marine plastics pollution. The United Nations Convention on the Law of the Sea (UNCLOS)⁷ provides an overarching legal framework regulating all activities in the oceans. In addition to a general obligation under Article 192 to protect the marine environment, Article 194 requires States to take all measures to prevent, reduce and control pollution of the marine environment. UNCLOS also regulates specific sources that have caused pollution, such as land-based sources,⁸ dumping⁹ and vessels.¹⁰ However, UNCLOS does not provide detailed regulations on prevention of marine plastic litter and microplastics.

A wide range of legal instruments address issues relating to marine plastics. First, various treaties regulate different sources of marine plastics. For land-based sources, which are responsible for 80 per cent of the plastics disposed of in the oceans, UNCLOS remains the only binding treaty that regulates them in these terms.¹¹ Although Article 207 of UNCLOS is of particular importance, it allows States wide discretion in regulating land-based pollution to reconcile national economic interests and protection of the marine environment from land-based sources.¹² The Global Programme of Action for Protection of the Marine Environment from Land-based Activities (GPA), which is not legally binding, provides guidance on taking action to prevent land-based sources of pollution. In 2012, UNEP introduced the ‘Honolulu Strategy: a Global Framework for Prevention and Management of Marine Debris’ to support implementation of the GPA by a set of goals and strategies.

Sea-based sources that generate marine plastic litter and microplastics by fishing, dumping and shipping should also be regulated. The United Nations Agreement for 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 (UNFSA)¹³ regulates abandoned, lost or otherwise discarded fishing gear, which forms a significant component of sea-based sources of marine plastics pollution. It requires States to minimise waste, discards and catch by lost or abandoned gear through taking appropriate measures.¹⁴ In addition, the 1972 Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter¹⁵ and its 1996 Protocol¹⁶ regulates and strengthens the obligation to prohibit dumping under Article 210 of UNCLOS. The International Convention for the Prevention of Pollution from Ships (MARPOL),¹⁷ which regulates ship-based sources of pollution, is linked to the obligation under Article 211 of UNCLOS. In particular, Annex V on the prevention of pollution by garbage from ships prohibits all kinds of discharges into the sea, including plastics. Such plastic wastes include ‘synthetic ropes, synthetic fishing nets, plastic garbage bags and incinerator ashes from plastic products’.¹⁸

Second, treaties regulating the impact of marine plastics on biodiversity and species include the Convention on Biological Diversity (CBD)¹⁹ and the Convention on the Conservation of Migratory Species of Wild Animals (CMS).²⁰ Each conference of parties has adopted a series of decisions relating to the management of marine debris. These decisions are non-legally binding, but they contribute to identifying knowledge gaps regarding the impacts of marine plastics on biodiversity and to developing best practices that States can apply.²¹

Third, with regard to hazardous wastes, the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal (Basel Convention)²² and the Stockholm Convention on Persistent Organic Pollutants (Stockholm Convention)²³ should be considered. The Basel Convention requires States to reduce hazardous waste generation, undertake environmentally sound management of hazardous wastes and restrict transboundary movements of hazardous wastes.²⁴ In 2019, the COP to the Basel Convention adopted a decision on the plastic waste amendment, which is notable progress in regulation of marine plastic waste.²⁵ The amendment has expanded the scope of ‘hazardous waste’ (Annex VIII) and ‘other waste’ (Annex II) so that most plastic wastes are subject to the Basel Convention. The amendment entered into force on 1 January 2021. Norway, which initially proposed the amendment, explains that the amendment will result in ‘less marine plastic litter, increased traceability, more control and less illegal dumping of plastic waste’.²⁶ States should minimise generation of plastic waste and manage it in an environmentally sound manner.²⁷ Although the amendment to the Basel Convention expanded the scope to encompass regulation of plastic wastes, it has been argued that there are still gaps, such as lack of national targets, relating to reducing the quantity of plastic waste in addition to no compliance system.²⁸ The plastic waste amendment does, nevertheless, represent notable progress in regulation of marine plastics pollution.²⁹ Indeed, the Stockholm Convention regulates plastics containing or adsorbing persistent organic pollutants that pose a hazard to marine ecosystems and humans.

Moreover, a regional legal framework provides an additional layer of regulation of marine plastic pollution. UNCLOS highlights the importance of regional cooperation in regulating pollution from land-based sources, which account for more than 80 per cent of marine plastic pollution.³⁰ The UNEP Regional Seas Programmes for the protection of the marine environment contribute to facilitating effective implementation of obligations, taking into account regional characteristics. Several regions have adopted regional seas conventions and legally binding instruments on different sources of pollution, such as land-based sources in the form of an annex or protocol.³¹ In addition, some regions have adopted Action Plans on marine litter, recognising marine plastics as the main sources.³² Although Action Plans are usually non-legally binding instruments – except the Regional Plan on Marine Litter Management in the Mediterranean – they demonstrate member States’ consensus on regional priorities, develop best practices and promote compliance with international obligations.

However, despite a plethora of international instruments to regulate marine plastics pollution, they provide only limited obligations within their mandate. Not all regions have binding regional instruments relating to marine plastic litter and microplastics. In this regard, it has been argued that the current international instruments are ‘rather patchy and subject to prudentially competing norms of behaviour’.³³ Fragmentation undermines legal certainty and reliable application of the laws in question.³⁴ It prevents effective implementation of relevant treaties, so resulting in weakening the rule of law.

4.2.2 Lack of Consideration of the Lifecycle of Plastics

The current legal framework on marine plastics pollution still does not provide a holistic approach governing all the lifecycle phases of plastics. The approach focusing on waste management will not be able to prevent generation of plastics, especially since the use of plastics causes significant negative environmental impacts on the marine environment at each stage of the plastics lifecycle.³⁵ On the other hand, a lifecycle approach of plastics seeks sustainable solutions based on the entire lifecycle of plastics rather than focusing on waste management at the end of their life. Therefore, the need is to take a lifecycle approach. This suggests adopting measures from the early phases of plastic production, such as a sustainable design for reuse, recycling or composting, and reducing the use of harmful substances to the end-of-life phase.³⁶ This is closely linked to a circular economy for plastics, which represents a shift from waste management to resource management.³⁷

There are a few instruments regulating the entire lifecycle of plastics, including upstream activities, such as manufacturing, materials used and product design.³⁸ For example, CBD guidance covers the full lifecycle of plastic pollution, addressing production design, limiting consumption of plastic, promoting recycling and best practices along with the whole of plastics manufacturing. The COP of the Basel Convention discusses updating Technical Guidelines for the Identification and Environmentally Sound Management of Plastic Wastes and for Their Disposal to reflect the entire lifecycle of plastic wastes. It recognises that ‘waste prevention or reduction involves both upstream alterations in product design, including use of alternative materials or technologies … ’.³⁹ It recommends measures at the early stages of plastic production, including adopting a sustainable design for reuse, recycling or composting, and reducing the use of harmful substances.⁴⁰ Extended producer responsibility addressed in the technical guidelines is closely linked to a lifecycle approach as it promotes waste minimisation from product design through to disposal of plastics by allocating a significant responsibility to producers.⁴¹ Although the guidelines do not impose obligations on States, they provide general guidance for developing national waste management strategies and best practices with respect to environmentally sound management of plastic waste.

There is increasing recognition of a lifecycle approach beyond the limit of waste management in tackling marine plastic pollution. It is interesting to note that UNEA Resolution 3/7 on marine plastic litter and microplastics highlights that ‘preventive action through waste minimization and environmentally sound waste management’ is the highest priority.⁴² However, UNEA Resolution 4/6 moves forward from waste management by underlining ‘the importance of more sustainable management of plastics throughout their lifecycle in order to increase sustainable consumption and production patterns … ’.⁴³ A lifecycle approach will contribute to minimising plastic waste generation, including microplastics, and reduce the use of hazardous substances through the entire plastics lifecycle, so as to closely link to the obligation to prevent under Article 192 of UNCLOS and to increase zero waste at the end-of-life phase of plastic.

4.3 Strengthening the Existing Regulatory Framework

4.3.1 Cooperation and Coordination between International Instruments

The fragmentation that exists between regulations remains an obstacle to tackling marine plastic litter and microplastics pollution. Cooperation and coordination between international instruments at the global level would help to reduce unnecessary overlap and duplication between existing regulations and improve implementation of legal instruments, consequently strengthening the rule of law. Since existing instruments often have overlapping objectives in terms of protecting the marine environment from marine plastic pollution within each sectoral interest, they are closely related to each other, and thus should be considered comprehensively and in a coordinated manner. The COP to the Basel Convention is a good example: it adopted guidance in collaboration with the IMO on how to improve the sea–land interface to ensure that waste offloaded from a ship, which previously fell within the scope of MARPOL, is managed in an environmentally sound manner.⁴⁴

In this regard, UNEP, as ‘the entity providing secretariat functions’ for a number of multilateral environmental agreements, could be used as an overarching body to coordinate different institutions.⁴⁵ UNEP is neither a superior institution with the authority to override decisions adopted by other institutions nor one that could impose legally binding decisions on States.⁴⁶ Yet it could encourage inter-sectoral coordination for the effective development and implementation of regulations intended for prevention of marine plastics and microplastics pollution. The coordinating role of UNEP in regulating marine plastic pollution has been recognised in several instruments. For example, Decision 14/13 adopted by COP to the Basel Convention stresses ‘the importance of cooperation and coordination with other international organizations and activities through existing mechanisms, and in particular the multi-stakeholder platform within the UNEP’.⁴⁷

4.3.2 Importance of Regional Cooperation

Regional conventions and action plans adopted in several regions are only applicable within a specific geographical scope. However, these could still serve as a significant platform to develop guidelines and best practices to prevent marine plastic pollution, taking into account its regional characteristics. The transboundary nature of plastic waste also requires a coordinated response across the regions. Inter-regional cooperation contributes to developing harmonised standards and promoting effective implementation at national levels.⁴⁸ The Regional Plan on Marine Litter Management in the Mediterranean could be considered a good example. Although it aims to address marine litter in general, including both land-based and sea-based sources, it is also applicable to marine plastic waste. The binding nature of the plan includes self-determined national targets and timelines that States should meet, which are applicable to marine plastic waste and countervail the weakness of international instruments.⁴⁹ It also requires regional cooperation by establishing institutional cooperation with various relevant regional institutions.⁵⁰

Some action plans expand broad aspects of regulation of marine litter, reflecting the lifecycle of plastic. For example, the action plan in the Mediterranean region states that ‘the entire lifecycle of the product with measures prioritizing the hierarchy of waste management to encourage companies to design products with long durability for reuse, recycling and materials reduction in weight and toxicity’.⁵¹ It includes an extensive producer responsibility strategy aiming at ensuring the entire lifecycle of the product and advocates establishment of manufacturing methodologies in cooperation with the plastics industry.⁵² The OSPAR⁵³ Regional Action Plan also provides upstream measures, including development of design improvements in sustainable packaging and the phase-out of microplastics in certain industries.⁵⁴ Considering that fishing gear is one of the major sources of marine plastic pollution, OSPAR adopted the Scoping Study on Best Practices for the Design and Recycling of Fishing Gear. This is consistent with a lifecycle approach as it addresses the design and recycling of fishing gear throughout the supply chain.⁵⁵ Thus, these regional action plans indicate that they complement implementation of international obligations taking into account the lifecycle of plastics and promote consistent action at regional and national levels.

Moreover, a monitoring system under the UNEP Regional Seas Programme should be highlighted.⁵⁶ This will contribute to monitoring compliance of international obligations by filling in the gaps in the data on marine plastics, such as the impact of marine plastics on regional seas, on plastic material flow and the quantity of marine plastic waste. It will assist in developing a global monitoring assessment on marine plastic pollution.⁵⁷ Monitoring in regions where the largest number of marine plastics are discarded could also provide a scientific basis for enhancing efficient decision-making and subsequently taking concrete measures.

4.3.3 Engagement of Multi-Stakeholders

Multi-stakeholders play a significant role in achieving a lifecycle approach in a circular economy. In particular, the plastics industry can contribute to developing technical standards and certificates relating to, for instance, labelling, recyclability and biodegradability. Development of industry standards relating to production, consumption, recycling and the final treatment of plastic is crucial to promoting implementation at national, regional and global levels. Yet there are regulatory and technical challenges to be faced throughout the lifecycle of plastics. They include substitution with no alternatives (product design phase), chemical release from plastic products (use phase), difficulties of chemical risk assessment and emission of potentially toxic substances (end-of-life phase).⁵⁸

Multi-stakeholder partnerships can fill regulatory gaps and assist in tackling these challenges. For example, the Global Partnership on Marine Litter is a multi-stakeholder partnership to facilitate international cooperation through implementation of the Honolulu Strategy.⁵⁹ It serves as a global platform for multi-stakeholders that can contribute to information sharing, development of new technologies and capacity building. It provides a useful forum for discussing industry standards and developing harmonised best practices to be implemented in collaboration with private actors. Indeed, the Basel Convention recently established a new Partnership on Plastic Waste to promote environmentally sound management of plastic waste in cooperation with multi-stakeholders, including ‘governments, regional and local authorities, Regional Seas Programmes, intergovernmental organizations, private sector, non-governmental organizations and academia’.⁶⁰ These partnerships can contribute to building synergies in collaboration with other international and regional organisations and the private sector.

Moreover, multi-stakeholder partnerships can play a significant role in enhancing the rule of law by providing opportunities for participation in salient law-making. They will be critical in decision-making and implementation of regulations and standards to achieve a circular economy for plastics. In this regard, whilst the international framework governing plastics should move towards a circular economy, cooperation with multi-stakeholders at multiple levels should be enhanced.

4.4 Towards a global treaty on the lifecycle of plastics

The United Nations Environment Assembly has discussed marine plastic litter and microplastics, and has recently adopted a series of resolutions on this matter.⁶¹ In particular, the Assembly also established the ad hoc open-ended expert group on marine litter and microplastics to ‘identify the range of national, regional and international response options, including actions and innovative approaches, and voluntary and legally binding governance strategies and approaches’.⁶² Recognising the fragmented nature of the current legal framework on marine plastics pollution, the group suggested possible options for improved global governance to tackle marine plastics pollution. These options broadly include (1) to maintain the status quo which should not be considered; (2) to revise and strengthen the existing framework; and (3) to adopt a new treaty that encompasses both enforced and voluntary measures.⁶³

At the fourth meeting of the ad hoc open-ended expert group on marine litter and microplastics in 2020, the third option, adoption of a new treaty on marine plastics, was strongly supported by many delegates.⁶⁴ Various delegates highlighted the key elements that should be considered in a new treaty, such as measurable targets or timelines; global industry standards, such as for design, labelling and recycling; harmonised monitoring procedures; effective compliance mechanisms; and capacity building.⁶⁵ Delegates also declared that these key elements should be developed in alignment with the entire lifecycle of plastics approach.

In 2022, UNGA adopted a resolution to develop a legally binding global instrument on plastic pollution 'based on a comprehensive approach that addresses the full life cycle of plastic' by 2024.⁶⁶ A new treaty could improve legal certainty and increase compliance with international standards, thus enhancing the rule of law. Yet a new treaty would not be a one-stop solution for preventing and managing marine plastics pollution. The legally binding nature of such a treaty and an effective enforcement mechanism for it have yet to be confirmed. Not all countries have expressed their support for adoption of a new treaty. If the States that produce most of the plastics waste were to refuse to ratify a new global treaty, the effectiveness of such a treaty could not be guaranteed. Therefore, whilst a new treaty aims to close the gaps in the existing legal framework, it should be mutually supportive of it, and not undermine obligations under existing treaties.⁶⁷ Adoption of a new treaty should not replace existing legal instruments. Rather, it should reinforce and strengthen existing rules and standards, thereby enhancing the rule of law for oceans.

4.5 Conclusion

Marine plastics litter and microplastics pose one of the most serious challenges to the marine environment today. Whilst UNCLOS provides an overarching legal framework to deal with marine plastics issues, which should be supplemented by multiple layers of global and regional regulations, a range of treaties and non-binding instruments regulate marine plastics, with a particular focus on their respective specific mandates. Although the 2019 amendment of the annexes to the Basel Convention is notable progress in regulating plastic waste, the current legal framework for marine plastics pollution is still criticised as a patchwork of instruments that are fragmented and ineffective in tackling the marine plastics issue. Marine plastics pollution is among those issues that indicate challenges to the rule of law in the sense that the fragmented nature of legal instruments regulating marine plastics and microplastics weakens legal certainty and effective implementation.

Existing legal instruments at global and regional levels remain an important aspect in terms of tackling marine plastics pollution. Cooperation and coordination between sector-specific instruments and between multiple layers of regulations at global, regional and national levels will promote coherent regulations and implementation. Meanwhile, a new paradigm revolving around adopting a lifecycle approach should be considered. This could significantly contribute to prevention of marine plastics litter and microplastics. There is growing awareness regarding issues of pollution ‘upstream’, which requires prevention and minimisation of plastic waste generation at an early stage of plastic production. Although a lifecycle approach has not been fully reflected in the current legal framework, it has recently been increasingly referred to as momentum for sustainable production and consumption. Multi-stakeholder partnership should be promoted in order to facilitate development of initiative solutions throughout the entire lifecycle of plastics from design to recyclability.

Despite urgent and widespread threats to the marine environment from marine plastics pollution, there is no one-stop shop solution. While discussion at the United Nations Environment Assembly clearly expressed support for adoption of a global agreement, development of a new international agreement and strengthening of the current legal framework should be mutually reinforced. The rule of law will be maintained only through comprehensive efforts to enhance legal certainty and to facilitate implementation of legal obligations at global, regional and national levels, taking into account the lifecycle of plastics.

5 The ‘Thin Law’ of Plastic Regulation and a Proposal for a Regional or Global Waste Tariff

Anastasia Telesetsky

5.1 Introduction

In general, effective rule of law relies on certain general attributes, including predictability, stability and accountability. In several ocean law areas including the subject of this chapter – marine plastic pollution – States have attempted to implement basic rule of law principles through laws, regulations and codes. In practice, however, the existing marine plastic pollution laws have failed to achieve an effective environmental rule of law, and this will continue to be so until States require some accountability from the primary producers and users of plastics. While the plastic packaging industry, especially the single-use plastic market, will continue to increase output, the industry has generally been able to avoid legal accountability for the harms associated with its products by shifting attention to consumers’ ‘desire’ for convenience and municipalities’ responsibilities to manage solid waste.

This chapter suggests that much of existing law that could address marine plastic packaging waste operates as a smokescreen for continued industry operations. This has consequences for both the plastic waste challenge and capping existing carbon emissions. As this chapter will argue, the problem is ‘thin law’, where the law exists but either fails to tackle the most difficult management aspects of the problem or attempts to tackle difficult issues but allows numerous exceptions.

Section 5.2 offers a brief introduction to an increasingly well-known problem: the saturation of plastic packaging waste into marine spaces. Section 5.3 identifies gaps and challenges with existing plastic management legal tools using several examples. And Section 5.4 offers a potential solution to the ‘thin law’ problem with the introduction of tariffs to stimulate a transition to a circular economy where packaging remains a resource and not waste.

5.2 Problem: The Plastocene

Chronic plastic pollution in the oceans from packaging has attracted global attention. One estimate posits 50–80 per cent of marine litter as plastic in origin.¹ Impacts on living systems include entanglement, ingestion, smothering and transport of toxins and non-endemic species.² In the 1960s, early marine litter research pointed to the lethality of many of these fishing-related plastics for seabirds, turtles and sea mammals.³ By the 1970s and 1980s, continued research indicated that the problems associated with plastic had intensified. In some instances, plastic has changed the physical environment with unknown implications for species depending on coastal currents and beaches.⁴ Researchers continue to locate plastic not just along inhabited coastal areas but also the world’s remotest islands, such as Henderson Island in the Pitcairn Island chain, and the world’s deepest sea features, including the Marianas Trench.⁵

The Pew Foundation estimates that continuing ‘business as usual’ practices in current management of plastic waste will result in increased use of our shared oceans as an ‘oceanfill’.⁶ Known chronic impacts of marine plastics on the ocean ecosystem such as entrapment and ingestion are well-documented by researchers and non-governmental organizations. Less-researched impacts of marine plastics may also include long-term negative consequences for ecosystems, commerce, national security and food security.⁷ The impact on human health of ingested microplastics from food sources such as fish remains uncertain. It is possible that these microplastics concentrate toxins in the environment.⁸ Equally alarming and inadequately researched, plastics release greenhouse gases as they disintegrate in the ocean, and microplastics may be interrupting the ability of the ocean to operate efficiently as a carbon sink.⁹

In response to unsettling media images of sea turtles with straws in their noses, rivers clogged with plastic waste and villages burning imported plastic waste, global norms had begun to slowly shift towards reducing virgin plastic packaging output. Young people have been particularly committed crusaders to ending ocean plastic pollution.¹⁰ While normative shifts can be identified in the demands of some consumer groups and the actions of some corporations, have these normative shifts been reflected in the law? Does the rule of law as applied to oceans compel legal reform that will slow or reverse ‘business as usual’ trends? Or is the existing law ‘thin law’ that will be unable to shift the packaging industry because application of the law will only replicate the status quo?

5.3 Gaps and Challenges: Too Much ‘Thin Law’ for a Thick Law Problem

As observed in the previous section, the global community has had decades of awareness of the problem of plastics. The global community has been addressing known problems with marine plastics for almost five decades since adoption of the Convention on the Prevention of Pollution by Dumping of Wastes and Other Matters (London Convention). In 1988, with a focus on vessel operations, States passed Annex V of the International Convention for the Prevention of Pollution from Ships to prevent intentional garbage disposal. These laws, if fully complied with, would reduce at least one known source of marine pollution. Vessel-based plastic pollution remains, however, a problem, as indicated by the registration of 10,000 pollution incidents in the Western and Central Pacific Ocean between 2003 and 2015; 37 per cent of these incidents were intentional discharges of plastic.¹¹

As problematic as ‘at-sea’ plastics are, land-based plastic garbage poses risks that have yet to be addressed comprehensively through law. The United Nations Convention on the Law of the Sea (UNCLOS) that requires States to prohibit pollution from land-based sources is weak. States only committed themselves to adopt laws and regulations ‘taking into account internationally agreed rules, standards and recommended practices and procedures’ designed to prevent, reduce or control toxic, harmful or noxious substances from land-based sources.¹² As of 2020, there are no international rules, standards or recommended practices and procedures for land-based plastics unless States were to legislate based on emerging industry trends towards reducing the amount of virgin plastic being used in packaging.¹³

To avoid offshoring of plastic pollution problems, the Basel Convention parties adopted amendments that became effective on 1 January 2021, requiring shippers to obtain prior informed consent for particular shipments of plastic waste deemed to be hazardous.¹⁴ At the regional level, States have also attempted to address land-based pollution through a variety of instruments calling on them to take action. For example, the Cartagena Convention’s Protocol Concerning Pollution from Land-Based Sources and Activities urges State participants to reduce solid waste/marine litter by developing National Programmes of Action for Watershed and Coastal Management as well as developing marine management plans to reduce marine pollution.¹⁵ The Protocol serves an important coordination role to assist the Caribbean Sea States in tackling the reality that the Caribbean region is home to the second most plastic-contaminated sea after the Mediterranean Sea.¹⁶ While the Protocol itself will not eliminate marine litter, it is expected to catalyse national legislation.

What is needed to eliminate marine litter is regulation of source material and production. The challenge for the ‘rule of law’ in this area is how to achieve this type of regulation without being outmanoeuvred by a powerful industry of fossil fuel, chemical and plastic corporations. Most States in response to public concerns have offered some form of legislation designed to address plastic waste. Many of these responses are ‘thin’, and by ‘thin’ this chapter refers to responses that do not directly address the problem at hand, or when they do address the problem at hand are engulfed in exceptions that allow operations to continue according to the existing status quo. What this means is that even though there is law on the books, the law as conceived is unable to address the scale of the problem. Looking at the examples in the next sections, one might conclude that ‘thin law’ is the best that one can expect from political compromise. While this may be the pragmatic reality of the authority of modern legislative institutions, these ‘thin’ laws fail to offer any possibility of shifting the environmental paradigm as they continue to encourage ongoing investments in conventional fossil fuel-based plastic production.

5.3.1 Thin National Laws

Three examples illustrate this ‘thin law approach. First, the United States as a major plastic producer has no national approach to reducing packaging sources that contribute to marine litter. While, on the one hand, persistent plastic that becomes waste could be characterized as hazardous waste under the Resource Conservation and Recovery Act (RCRA) depending on ecological toxicity associated with accumulated marine litter,¹⁷ this law has never been applied consistently across industries to reduce mismanaged waste. For example, even though researchers in 2010 working in the Puget Sound region recovered 870 gillnets that had arguably become waste containing plastic filaments that entrapped thousands of fish, hundreds of birds and dozens of mammals, no attempt has been made to hold the fishing industry or fishing net manufacturers accountable for failing to manage a potentially dangerous waste material because this would have required the regulators or courts to be creative in applying the RCRA.¹⁸ Nor are plastic beverage container manufacturers considered to be generators of waste for the purposes of the RCRA even though only minimal numbers of bottles are ever recycled. The RCRA law, despite setting national standards, is not ‘fit’ to address marine debris or the amassing of post-consumer plastics except to ensure that landfills are properly designed.

More specific attempts to address Marine Debris in US legislation fare no better in terms of delivering outcomes capable of addressing the scale of the challenge. The Marine Debris Act as amended by the Save our Seas Act provided for the National Oceanic and Atmospheric Administration to work with other federal agencies to address marine debris sources, to assist in facilitating a response to a ‘severe marine debris event’ and to develop international action.¹⁹ Not unsurprisingly, given the growth of the plastics industry in the United States and the strength of the industry lobby,²⁰ the law fails to specifically address unabated plastic manufacturing for ends such as single-use packaging as one of the unmitigated sources of marine pollution.

A second 2020 Save Our Seas 2.0 Act that passed the partisan US House and Senate extends financing for a trust fund and a prize competition.²¹ While the prize competition offers an improvement over the existing 2018 Save our Seas law by rewarding one or more individuals for the development of ocean-degradable packaging materials and other packaging innovations, the law remains quite ‘thin’ because it fails to recognize the existence of numerous viable ocean-degradable packaging materials and to mandate for better packaging standards using these existing materials. Instead, the proposed US law presumes that the market will boost the prize winner’s innovation, plastic production will shift to new materials on a schedule that is amenable to plastic producers and Congress will not need to intervene. Equally ‘thin’ are the provisions on addressing the proliferation of ocean-bound plastic in the fishing industry, where government administrators ‘shall encourage United States efforts, such as the Fishing for Energy net disposal program’.²²

The United States’ approach is a ‘thin’ approach because it offers nothing more than a potential indirect fix through the possible development of a new market niche. There are no affirmative steps designed to transform existing supply chains. The United States could have attempted a ‘thick’ law fix that would address the heart of the problem, as it attempted to do with the 1970 Clean Air Act mandating ‘technology-forcing’ that required the automobile industry to design higher efficiency vehicles and better emission control systems.²³ The ‘thinness’ of US efforts is unsurprising given the powerful lobbying support from the Grocery Manufacturers Association, the America Chemistry Council and the Plastic Industry Association.

A second example of a ‘thin’ approach is taken by Uganda whose legislation, at first glance, seems to be on target to address the issue of plastic production. Uganda extended a ban on plastic bags, but a closer review of the ban illustrates that a large sector of single-use plastic packaging production remains intentionally unregulated. When Uganda opted in 2010 to ban the importation, sale and use of plastic bags in response to the waste challenges faced by the nation, the government adopted a set of regulations that allowed for extensive exceptions to the more general prohibition against plastic bags, including ‘plastic for packaging of toilet paper’, ‘shrink sleeves made of plastic for labelling of water bottles, cosmetic bottles, and jars’, ‘plastic bags used for packaging of candy sweets, biscuits, pasta, sugar… and any other food or cosmetic product requiring moisture barrier properties’ and ‘plastic sheeting for agricultural, horticultural or floricultural use’.²⁴ When the schedule to the regulations listing the exceptions to the ban is read in toto, the list of exceptions encompasses a broad array of potentially problematic packaging and industrial materials, where alternative packaging materials are likely to exist though they may be more costly. While these exceptions that were negotiated into the law reflect the reality of stakeholders who have already sunk costs into packaging materials and packaging machinery, they also reflect a ‘thin’ approach to law, as the status quo for plastic manufacturing remains for much of Uganda.²⁵

Finally, even where a State imposes a ban on plastic importation or production, laws may appear tough on their face but are unable to be implemented due to unenforceability. As UNEP authors noted in a recent report on the legal limits of single-use plastics, ‘the majority of bans do not contain specific enforcement provisions, such as fines or prosecutions’.²⁶ For countries where the normative push in support of the legal ban framework lacks broad community support, lack of enforcement means that the law may become ‘ultrathin’, as it depends on persuasion for implementation rather than authority.

5.3.2 Thicker Laws?

A couple of ‘thick’ laws have yet to be fully tested but could change production paradigms if broadly adopted and with the intention of innovating in the existing packaging market. What constitutes a ‘thick law’ for the purposes of marine plastic waste is a law with enough substantive content and implementation to lead to a fundamental change in the current packaging economy that sells a million conventionally produced plastic bottles every minute and expects to grow by 20 per cent.²⁷ As of today, few countries are prepared to experiment with these laws. On 29 July 2019, Tuvalu introduced an import ban on single-use bottles under 1.5 litres and food wrap as well as bags, straws, cutlery and plates.²⁸ Failure to comply could lead to an individual fine of up to US$3420 or a corporate fine of up to US$6840 for a first offence and/or imprisonment of up to two months. Depending on how regulators interpret ‘food wrap’, these laws could change how locally produced food is distributed and packaged. Tuvalu is, however, a very small market for global trade.

As of mid-2020 Costa Rica is in the process of implementing a law requiring importers, producers, marketers and distributors of single-use plastic bottles and products that are packaged in single-use bottles to engage in either: using recycled resins, recovering bottles in an extended producer responsibility scheme, designing products minimizing waste or working with municipalities to recover waste.²⁹ Violations of the law would be subject to fines and an obligation to compensate and restore environmental damage. Implementation of this law could substantially change packaging practices within Costa Rica, but there is no requirement that any of the packaging be marine biodegradable.

In the Caribbean Sea and Pacific Ocean region, several ‘thicker’ laws have been proposed with a ban focused on particular packaging and single-use items including single-use plastic bags, Styrofoam containers, plastic utensils and plastic straws.³⁰ For each of these items, there are readily available alternatives that are less damaging in terms of generating potential marine pollution. As of 2020, Canada is in the process of proposing a ‘thicker’ law to reduce plastic packaging in the market by banning additional products beyond the Caribbean and Pacific States, including beverage six-pack rings and food packaging made from plastics that are difficult to recycle. Many other products, including garbage bags, snack food wrappers, disposable personal care items and beverage containers, are not proposed for inclusion in the single-use plastics ban due to a lack of existing readily available alternative packaging.³¹

The paradigm that needs to shift is from single-use disposable materials to some version of a circular packaging economy where materials selected for use by the industry do not contribute to toxicity or other serious long-term impacts on the environment. The challenge for countries that have adopted these rules is that, as States with limited market share, it may take time before products can be shifted to marine-friendly packaging. Whether there would be consumer backlash due to the unavailability of products leading to legislative retraction remains to be seen with the recently adopted Caribbean laws. In Saint Vincent and the Grenadines, the ban on distribution, sale and use of disposable plastic shopping bags has been suspended until after the Christmas season in part because of COVID-19 but also allegedly to allow businesses the ability to deplete their stocks of plastic bags.³²

For either ‘thin’ laws or ‘thick’ laws, implementation can always pose a challenge. Even where a given regulation provides for administrative penalties such as Uganda’s 2010 regulations prohibiting the import or use of plastic carrier bags measuring less than 30 microns in thickness,³³ state institutions appear to lack the political will to pursue enforcement activities due to special interests. A 2018 commentary in a Uganda newspaper observed that the law ‘has for the last 8 years almost had no legal force’ despite commitments by the National Environmental Management Authority, Kampala Capital City Authority, the President and the Finance Minister to make progress.³⁴ The High Court of Uganda even weighed in on the matter with a 2012 legal opinion indicating that the continued proliferation of unmanaged plastic garbage across Uganda, including some items that were deemed permissible under the government regulation, violated the rights of Ugandan citizens to a clean and healthy environment.³⁵ The Ugandan government, as a whole, has proved to be less than resolute in implementing its law because of constant pressure from plastic manufacturers in Uganda, who argue that the ban is destroying their livelihood and that the problem is not high rates of manufacturing but low rates of recycling.³⁶

The gaps in the law operate more like a sieve. While certain products are subject to regulation, including bans designed in part to shift the packaging industry to less environmentally damaging materials, the status quo remains largely in place for most containers. Single-use plastics remain a ‘wicked problem’³⁷ that is hard to resolve because the problems associated with production and consumption continue to accrue across a dispersed landscape.

Ideally, a global instrument will emerge to fill this gap. Some discussions have advanced. In 2019, UNEP launched a project ‘Protecting the Marine Environment from Land-Based Pollution Through Strengthened Coordination of Global Action’ that includes linking implementation of the Global Programme of Action to the UN Environment Assembly (UNEA), which is the ‘world’s highest-level decision-making body on the environment’.³⁸ During the third session of the UNEA in 2018, States convened an ad hoc open-ended expert group on marine litter and plastics that has continued proposing global responses. As the scale of marine plastic waste challenges expands, the Assembly may in coming meetings ‘consider the need for international rules, as well as recommended practices and procedures, to further the objectives of the Global Programme of Action’ and offer some essential rules or standards.³⁹

In 2020, the expert group collected nine potential State and regional governance responses for future Assembly action. Responses varied greatly across geographical groups. The African Group called for a new internationally legally binding agreement that would include reduction targets, national action plans, reporting (including plastic production, plastic use, plastic waste management), monitoring of national discharge by an international scientific body, a financial mechanism to support implementation, technology transfer and capacity building and adopting ‘uniform regulatory measures … [for] those categories of plastic products that are most prone to leakage and that pose a particular risk to the environment, including single-use plastics, fishing gear and primary microplastics’.⁴⁰ Norway agreed with the idea for a new instrument but recommended that the focus be on enhancing cooperation and coordination between States to minimize plastic waste, better management of recycling, designing sustainable plastic products, sharing responsibility for plastic waste management fairly, creating targeted measures for microplastics and developing a clearinghouse of knowledge around marine plastic.⁴¹

Vietnam offered an even more specific and ambitious vision of a future treaty. The States’ draft instrument that would include binding measures to regulate subsidies to the fossil-fuel industry, identify alternative materials to replace plastics, reduce production of low density polyethylene, introduce eco-labelling standards, improve compliance with Basel Convention on any trade in plastic waste, ban certain uses of low density polyethylene and ‘problematic plastics’, implement Extended Producer Responsibility schemes for private industry, set international standards on waste management practices for export and import of recycled waste, create an international financial mechanism for waste management and recovery, mandate national action on marine cleanup, create a Regional-level Plastic Study Center, implement an international or regional mechanism for monitoring and reporting of transboundary plastic waste flows, regulate import and export of plastic materials and waste, adopt national action plans that match global obligations, adopt regular reporting, generate global rules and standards on extended producer responsibility, implement the ‘polluter pays’ principle and create capacity building programmes.⁴²

The United States’ submission sought more cooperation between States but did not support new international obligations. Rather it supported better local implementation. The United States called for better use of existing instruments and institutions to manage marine litter through regional seas programmes, regional fisheries bodies and river basin committees.⁴³

Is existing law fit for purpose to protect oceans from unmanaged marine plastics? Regrettably, no. Existing law is simply too ‘thin’ because the laws either fail to address the essential challenge of marine litter, like the proposed US law, or the substantive components of laws appear not to be systematically implemented, as in Uganda. International law conversations at the UNEA offer hope that States might be able to coordinate a global response to be implemented nationally, but as of yet there is no common vision beyond agreement that marine plastic litter must be reduced. While not every large plastic-producing or using country participated in submitting responses, the existing responses illustrate two important framings of existing marine plastic pollution issues. For some entities such as the United States who are eager to protect their industries, marine plastic pollution is understood not as a consumption problem but as a waste management challenge. There is no political interest in a paradigm shift. For other entities such as the African group, Norway or Vietnam, there appears to be substantial political interest in transforming the status quo of plastic production to create a paradigm shift allowing for wholesale reimagination of aspects of our economy that have become conventional. Even so, there are differences in approach.

While concluding any global instrument to specifically address marine plastics will be fraught with political difficulties given the numerous populist/nationalist politicians governing certain States who have historically operated as bottlenecks to international cooperation, allowing business as usual for the conventional plastic industry will only continue to undermine the object and purpose of existing legal regimes such as the Law of the Sea Convention. If law is going to be part of any potential paradigm shift to change what plastic is produced and how it will be used, there need to be stronger market signals. Section 5.4 builds on what Vietnam proposed indirectly in its submission to the ad hoc commission in terms of regulating ‘subsidies’ for fossil-fuel based primary feedstocks. In addition to any possible re-examination of fossil fuel subsidies, States across the globe need to apply a reasonable global carbon tax on plastic manufacturing from fossil fuel derivatives to achieve both a reduction of marine plastic litter but also a reduction of greenhouse gas emissions.

5.4 Solution: Overdue Single-Use Waste Tariffs and Plastic Fishing Gear Tariffs to Address Major Sources of Marine Plastics

As suggested by the ongoing challenges of regulating through ‘thin’ and ‘thicker’ rules, there are yawning gaps in existing legislation to reduce the amount of single-use plastic in circulation. Most notably, the piecemeal approach taken by the ‘thicker’ rules that ban the importation or sale of certain single-use items still fails to change the larger paradigm of relying on single-use plastic for daily necessities.

In the past decade, States and some enterprises have begun to promote the concept of a ‘circular economy’, which is understood as an economy designed to reduce waste and pollution by designing ‘cradle to cradle’ products that do not rely on non-renewable feedstocks and can be either reused or more fully recycled.⁴⁴ Certain products such as single-use products generally do not conform to the principles of a ‘circular economy’. How do we take a linear economy and create a ‘circular economy’?

One tool for advancing the ‘circular economy’ might be global tariffs. Environmental economists are fond of suggesting that environmental issues can be handled by proper pricing so that goods reflect the costs of environmental externalities. Yet as the ongoing carbon tax debates have continued to unspool over the last two decades, there has been little agreement on how to multilaterally deploy economic instruments to achieve global change. Every country and municipality is left to its own devices.

This failure to develop a multilateral response ignores the interactions among global enterprises, target markets and environmental externalities. In our global system of capitalism, fossil fuel industries and plastic manufacturers are continually seeking to identify and create new markets, with particular growth targeted for the Middle East, China and the United States – all entities that have shown historical intransigence on reducing emissions.⁴⁵ The lack of any multilateral waste tariff enables this global growth.

Economic instruments such as tariffs offer additional instrument choices beyond direct regulation and voluntary instruments.⁴⁶ While truly international tariffs have not been negotiated, they would provide an efficient means of pricing externalities that States are being forced to absorb either in the form of additional investments in waste management or in damage to marine resources. Adopting an international tariff would be politically challenging but would address the gap in the existing rule of law where there is no real accountability to address single-use plastics as a growing source of carbon emissions or a global environmental and public health threat.

The work of the United Nations Environmental Assembly in the years to come would have the most impact on curbing plastic pollution by focusing political will on tackling the upstream aspects of drivers of plastic waste, which includes production of single-use plastic products that have not been designed to be part of a ‘cradle to cradle’ system. While the downstream aspects of plastic waste are the most visible aspects of the problem in the form of trash-strewn beaches and garbage-clogged rivers, it will not be possible to alleviate these problems if production continues to accelerate. Affluent countries already struggle with locating space for landfilling, and incineration has its own public health costs.⁴⁷ Certain regions such as the EU are already attempting essential policy investments to make these changes to focus on upstream production.⁴⁸

To curb production, the economics of single-use plastic production would need to change. One means of changing production is through taxes. A multilateral carbon tax would be a good start but is politically challenging.⁴⁹ As of 2020, some forty-six countries have some form of carbon tax, including the EU Member States, the (pre-Brexit) United Kingdom, Switzerland, Iceland, Canada, Mexico, Argentina, Chile, New Zealand, Australia, Singapore, Japan, South Korea and Kazakhstan.⁵⁰ Most analysis of the impact of carbon taxes has focused on the cost increases for certain resources. The impact of these taxes on reduction of marine pollution from plastic sources has yet to be measured. Many of these taxes have only recently been adopted.

Despite all of the merits of a carbon tax system in terms of its efficiency and fairness (e.g., focusing payments at the level where decisions can be made about production), few countries appear to be pricing carbon high enough to create the types of reduction needed to reduce emissions to the ‘safe’ level urged by the Intergovernmental Panel on Climate Change. In the European Union, the epicentre for the most countries engaged in a carbon tax, excess carbon allowance permits have been on the market for years, resulting in low carbon prices.⁵¹ The United Kingdom recognized some of this failing and enacted a carbon price floor for certain carbon-intensive industries designed to financially incentivize a shift to cleaner energy production.⁵² Even with the current low prices for carbon allowances in the EU, researchers have still observed a reduction in carbon emissions across the EU as part of Europe’s oft-criticized Emissions Trading Scheme, suggesting that a carbon tax system would deliver even more reductions if the price of carbon is uniform.⁵³

It has been, however, politically difficult to have a carbon tax that is more than simply window-dressing since voters in at least some parts of the world are unwilling to accept that the ‘polluter pays’ principle also applies to consumers. In Australia, the Labor Government introduced a carbon tax but then lost the elections to the Liberal party, who gutted the programme in favour of industry interests.⁵⁴

Some countries such as Canada are using a revenue-neutral approach to appease voters. For Canadian provinces that do not have a carbon pricing policy that meets certain benchmarks, Canada collected a fuel tax, beginning in 2019, starting at around 4.42 cents per litre. For most of the affected provinces, 90 per cent of revenues are redistributed to individual Canadians through Climate Action Incentive payments to offset higher costs for individuals who use less fuel.⁵⁵ Ten per cent is returned to small businesses, schools, hospitals, cities, non-profits and indigenous communities. Canada also initiated a parallel system for large industries with global competition that were not charged the fuel tax but instead were required to purchase carbon credits for excess emissions in a programme called the ‘output-based pricing system’.

A truly global carbon tax could change the calculus of operation for major energy-intensive industries such as the chemicals and plastics sectors. One estimate by researchers calculates that a consumption tax on fossil fuel-derived plastic would shrink the plastic market by 7.24 per cent through reducing global demand.⁵⁶ The bazillion dollar multilateral question is how to set a global carbon tax that is politically palatable but also effective. A carbon tax is desirable and would directly address greenhouse gas emissions and, indirectly, pollution. By raising the costs of plastics so that single-use plastic would no longer be the cheapest packaging option, manufacturers would presumably seek alternative packaging approaches for goods that are presently in single-use plastic containers. The increase in cost associated with plastic packaging should decrease the amount of plastic waste being generated and the potential for plastic to prejudice both the terrestrial and marine environments.

In the interim before a global carbon tax catalyses system-wide changes across all industries, States should respond to citizen demands for a first step towards implementing the circular economy in the packaging industry and the fishing industry by placing tariffs on specific non-essential plastic products that contribute to marine pollution. An international waste tariff would focus attention on the externalities associated with the global trade in non-essential single-use plastics and problematic plastic fishing gear. A non-essential plastic should be defined in a harmonized fashion to include excess packaging such as double wrapping for advertising purposes (e.g., a plastic drink bottle with a plastic sleeve advertising the brand) as well as containers that could be manufactured from alternative sources (e.g., plastic milk jugs that could be manufactured from glass). States could agree to levy General Agreement on Tariffs and Trade-compliant import tariffs on certain plastics items from other member States to cover not just carbon-related costs (e.g., carbon is released when plastics begin to decompose)⁵⁷ but, more importantly, adequate disposal costs.⁵⁸ Non-discriminatory tariffs will require similar levies to be placed on domestic plastics. To prevent leakage of non-tariffed plastics from non-member States into a member’s market, members should refuse imports of plastics from non-member States that would not otherwise be subject to levies unless the non-member State agrees bilaterally to be subject to the same levies. This approach has legal precedents found in the Basel Convention⁵⁹ and the Montreal Protocol.⁶⁰

Critics might argue that focusing on drafting a multilateral trade-focused treaty in the middle of a waste crisis contributes too little too late and that available political attention should instead be focused on national and local efforts to reduce plastic consumption.⁶¹ While possibly appropriate for certain situations such as domestic production of plastics for domestic markets, this critique ignores the global supply chain aspects of single-use plastic markets. As noted earlier in this chapter, the growth in petrochemical production infrastructure in the Middle East, China and the United States is intended for expansion of surplus plastic production into international markets, not just for national markets.

Tariffs strengthen the rule of environmental law by offering more predictability for economic actors seeking to enter an alternative packaging market as well as some financial accountability from those producers who continue to sell non-essential plastics into the marketplace. Tariffs are ‘thick’ because they have a substantive content that can be operationalized through customs and revenue agents. If these waste tariffs are set at an appropriate level to cover the long-term costs of plastics to environmental and human health, then implementation of waste tariffs could lead to a fundamental change in the current packaging economy. Under the rules of non-discrimination, a tariff must not give an advantage to domestic producers over foreign producers. This would mean that States with tariffs in place on imported plastic goods would be expected to have similar measures in place for domestic producers. The key to success of any waste tariff will be setting the tariff at a rate capable of helping state markets to shift towards new packaging and fishing gear materials.

Some States, such as many African countries, Vietnam and Norway, have been publicly outspoken about the need to take system-wide steps to promote a circular economy capable of addressing plastic pollution. These States can take leadership in a different direction than the current effort to address marine plastic pollution, which has largely depended on ad hoc efforts by individual States to improve waste management. While more can certainly be done to improve waste management through capacity building and financing, focusing on waste management alone will not achieve the principles of the circular economy. States must give attention to ongoing plastic production and what role the market plays in creating conditions for what has become a persistent problem. Unlike the ‘thin and ‘thicker’ national laws that have attempted to address production concerns provisionally by regulating easy-to-regulate products, a multilateral trade tariff offers a State committed to systematically reducing plastic pollution the ability to raise the ceiling across manufacturers to demand better design and fewer sources of waste.⁶²

5.5 Conclusion

This chapter has reviewed the increasingly well-understood problem of marine plastic pollution while noting that conventional single-use plastic production is also compounding our emissions crisis. Existing international responses have been insufficient to curb plastic pollution. Well-intended national legal responses have failed to address plastic pollution by focusing only on waste management or allowing exceptions to swallow rules. As States attempt to practically achieve circular economy principles in relation to plastic usage, they will need to eliminate competition in their markets from cheap and unnecessary plastics. One means of doing this is by properly setting prices to reflect the long-term environmental and social costs of plastics within a given State. To shift markets unilaterally is very difficult, as evidenced by the government of Kenya, which struggles with leakage of banned plastic materials from neighbouring States.⁶³ Global cooperation is essential to support the transition to a circular economy, with States collectively seeking new solutions to both packaging challenges and marine fishing efforts. A trade treaty focused on pricing external costs associated with plastics between interested parties such as the African Group, Norway and Vietnam – who have politically indicated some ambition to eliminate plastic waste streams – could prove transformative for limiting new sources of marine litter, while having much-needed spillover effects on reducing emissions.

The rule of law plays a critical role in achieving the post-Plastocene era. A waste tariff addresses the accountability gap that exists in current approaches to systematically addressing marine plastic pollution. It does so by changing basic assumptions that all products entering a particular market should be regarded as functionally equivalent and environmentally neutral.

6 Pollution of the Marine Environment by Spaceflights

Alla Pozdnakova

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6.1 Introduction

Like other industrial activities, launches and returns of man-made space objects inevitably take a toll on the Earth’s environment. For example, emissions from space launches may result in atmospheric pollution, ozone layer depletion, impact on wildlife and biodiversity, and pollution of land and water by emissions of carbon soot, alumina or water vapour, as well as by jettisoned parts (worked-off lower stages) of the launch vehicle. The impact from launching involves multiple explosive emissions of combustion products and thermal energy, as well as strong acoustic oscillation on the launch pad.¹ At the same time, developments in the space sector suggest that space launches will continue to grow as new commercial satellite launch facilities emerge in coastal areas around the world. Deposition into the sea of materials jettisoned during the launch of space vehicles is an activity expected to rise sharply in frequency in the coming years.²

Although environmental concerns in the space sector were raised decades ago, legal aspects of protection of the Earth’s environment from pollution by spaceflights have received relatively little international attention. International treaty-based space law only indirectly addresses this problem through provisions on state liability for damage caused by space objects on another State’s territory or aircraft.³ To tackle the challenges pertaining to the use of nuclear power sources in outer space, including protection of the Earth’s biosphere, the United Nations (UN) has adopted non-binding instruments.⁴ However, contamination of the environment resulting from normal operation of launches and other spaceflight-related activities has largely remained within the national domain of States.⁵

Several reasons may explain scarce international development on this issue. The total impact of space activities on the Earth’s environment has been viewed as insignificant, short-term and local, whereas the focus of international environmental law has traditionally been placed on serious transboundary pollution. However, the environmental impact of spaceflight may indeed be transboundary, affecting maritime areas both within and outside national jurisdiction of States. Even launches from inland-located spaceports may produce a long-range and transboundary environmental impact on maritime areas located far away from the launching site.⁶ The use of highly toxic fuels or nuclear power for propulsion of spacecraft could multiply environmental harm in the case of a launch accident, or of radioactively contaminated space objects returning to Earth.

As the contemporary space sector is characterized by active participation of commercial, non-state actors, appropriate regulations at the national level are indispensable to ensure environmentally responsible conduct by private actors in the space sector.⁷ At the same time, the question arises whether an approach based on unilateral environmental regulations and standards of individual States is sufficient to tackle environmental pressures from spaceflight, especially pressures on maritime areas.

A feasible explanation for the lack of international legal measures to tackle spaceflight pollution lies in a weak environmental rule of law in the space sector. In principle, protection of the marine environment from pollution by spaceflights is governed by general international environmental law,⁸ and by two treaty-based regimes: space law and the law of the sea. General environmental law suffers from inherent weaknesses, notably vague environmental obligations of States, uncertain legal status of principles (e.g., the precautionary principle) and absence of an adequate institutional framework allowing for inter-state dialogue and cooperation.⁹ These issues remain largely unresolved in the special regimes of space law and the law of the sea. Neither space law nor the law of the sea expressly addresses protection of the Earth’s environment from pollution by space-related activities. In the absence of specific provisions, the applicable obligations have to be derived from generally applicable environmental provisions and principles, resulting in a vague and fragmented legal framework. This is insufficient to address complex issues of environmental protection effectively and comprehensively in the space sector.¹⁰

This chapter argues that further development of international regulation of the environmental dimension of spaceflights is imperative in order to tackle existing and future pressures that such activities may cause the Earth’s environment. The focus of the discussion in this chapter is international legal solutions for tackling spaceflight pollution of the marine environment, resulting from normal (operational) discharges during launch activities. It is pointed out that international cooperation needs to clarify and strengthen the relationship between the space law and law-of-the sea regimes through developing a more effective normative and institutional framework.

Further discussion starts in Section 6.2 by assessing international space law and the law of the sea as normative frameworks for the marine environmental dimension of spaceflight, with focus on the Outer Space Treaty and United Nations Convention on the Law of the Sea (UNCLOS)¹¹ Part XII. Then in Section 6.3 the discussion turns to the question of how the environmental rule of law should be strengthened and developed to tackle marine pollution in the space sector more effectively. Section 6.4 concludes.

6.2 The International Environmental Framework Governing Spaceflight Pollution

6.2.1 International Space Law

The Outer Space Treaty is a universal treaty establishing a legal regime for state activities in the exploration and use of outer space.¹² Importantly, the Outer Space Treaty places responsibility on State Parties for their national governmental and non-governmental activities in outer space, and for assuring that national activities are carried out in conformity with the Treaty provisions. It further provides that the ‘activities of non-governmental entities in outer space, including the Moon and other celestial bodies, shall require authorization and continuing supervision by the appropriate State Party to the Treaty’.¹³ The State of registration of a space object ‘shall retain jurisdiction and control over such object’, and over any personnel thereof, while in outer space or on a celestial body.¹⁴

General obligations of States in the space sector should be interpreted in light of applicable international environmental law provisions.¹⁵ The Treaty contains relevant principles of law such as the principle of cooperation and mutual assistance, and the duty to report on potentially hazardous activities.¹⁶ Such fundamental rules of international environmental law as the duty to prevent transboundary environmental harm and the duty to notify of imminent danger had already been articulated in international environmental law at the time when the space treaties were developed.¹⁷ With regard to nuclear safety, the UN Principles Relevant to the Use of Nuclear Power in Outer Space (NPS Principles) are accepted as part of customary international law.¹⁸

Further, the contours of the principle of prevention are arguably detectable in international space law instruments, including the Outer Space Treaty and the Liability Convention. In 1999, the UN recognized that ‘action should be taken to ensure, to the extent possible, that all space activities, in particular those which may have harmful effects on the local and global environment, are carried out in a manner that limits such effects and to take appropriate measures to achieve that objective’.¹⁹ This confirms the existence of a state obligation to take relevant measures to prevent and combat environmental degradation by spaceflights. However, the specific aspects of this obligation, including the criteria for determining environmental ‘harm’ triggering the duty to take measures are unclear.²⁰

Other questions that also remain are what kind of state measures would be required to achieve this objective, and whether existing international space law is adequate for this purpose. The ambiguity of state obligations laid down in space law instruments and the absence of expressly formulated provisions on protection of the Earth’s environment – other than Article IX of the Outer Space Treaty addressing protection of the Earth’s environment from pollution by extraterrestrial matter – results in challenges for the effectiveness of the environmental rule of law in the space sector. For example, international space law is silent on the duty to conduct an environmental impact assessment before starting a space activity. There are also no jointly developed standards of environmental safety and emission levels.

The legal relevance of the precautionary approach in the face of scientific uncertainty with regard to the environmental effect of spaceflights, including their terrestrial dimension, is not articulated explicitly in outer space law instruments, with the exception of the NPS Principles. These Principles require States to conduct safety assessments and take other relevant measures, indicating the importance of the precautionary approach (if not the precautionary principle) in the nuclear sector of outer space activities.²¹ The overall legal status of the precautionary principle – or at least the relevance of the precautionary approach – in outer space law is not yet commonly agreed.²² This may be partly explained by the continuing uncertainty of the precautionary principle and its legal status in international environmental law generally.²³

An important condition for effective environmental rule of law in the space sector is the existence of an adequate international institutional framework. International governance of outer space, including its environmental dimension, takes place at several levels. The global space governance institution, the UN Committee on the Peaceful Uses of Outer Space (COPUOS),²⁴ has contributed significantly to development of policy on the long-term sustainability of outer space and mitigation of space debris.²⁵ Other international and regional organizations have also played an increasingly significant role in space governance. Importantly, the European Space Agency (ESA)²⁶ contributes to the formation of space law as it develops its own internal procedures, negotiates international agreements in the space sector and implements international space practices.²⁷ The ESA has been working on a green fuel project to replace toxic space propellants such as hydrazine.²⁸ However, COPUOS and other international space institutions do not have a specific environmental law-making mandate, nor are they explicitly given competence to monitor and supervise member States’ measures regulating the terrestrial dimension of environmental protection in the space sector.

6.2.2 Law of the Sea as a Normative Basis for Regulating Marine Pollution by Spaceflights

UNCLOS provides a comprehensive legal framework on marine environmental protection.²⁹ A general obligation of States to protect the marine environment from the harmful impact of space activities follows from Article 192 UNCLOS. Crucially, UNCLOS requires States to exercise due diligence in environmental matters by adopting appropriate measures and showing adequate levels of vigilance in their enforcement and control.³⁰

Article 192 also encompasses potential impacts on the marine environment, transboundary and non-transboundary alike,³¹ the duty to protect the oceans from future threats and to take positive action with a view to maintaining and improving their present condition.³² The obligation to protect the marine environment from pollution is set out in Article 194 UNCLOS and detailed in several further provisions of Part XII. Although UNCLOS does not expressly include spaceflight pollution in its scope, it seeks to address ‘all issues relating to the law of the sea’ and requires States to protect and preserve the marine environment from all sources of pollution.

In general, the definition of pollution envisages actual or likely ‘deleterious effects’ on the marine environment such as harm to living resources or hazards to human health.³³ While the general threshold for harm is relatively low, some effect (even if only potential) on the marine environment is required. The focus appears to be not on changes in the marine environment in general but on harm to some more or less specific interests or resources.³⁴ Article 194 also envisages a nuanced approach, by requiring more stringent control of activities that may harm ‘rare or fragile ecosystems’.³⁵

Effective application of Article 194 is thus conditioned on the availability of knowledge about the effects of spaceflights on the marine environment, allowing State(s) to rely on some scientific outputs in order to determine whether and what ‘adequate’ and ‘necessary’ measures are to be adopted to tackle such pollution.³⁶ Still, existing research on the marine environmental effects of spaceflight appears rather piecemeal. These information gaps result in significant uncertainty about the risks and extent of environmental degradation that accelerating spaceflights may bring about, calling for use of the precautionary approach to protection of the marine environment from spaceflight-source pollution. In this author’s view, the hazardous character of spaceflight activities calls for application of the precautionary approach as part of the duty of due diligence. However, while precaution is envisaged in several multilateral environmental agreements and has also been accepted by international courts with regard to specific activities and sectors, the general relevance of the precautionary approach in the law of the sea remains unclear.³⁷

Significant information gaps on the marine environmental impact of spaceflight highlight the particular importance of provisions addressing research cooperation (Article 200), establishment of scientific criteria (Article 201), monitoring the risks or effects of pollution and publishing reports (Articles 204 and 205) and assessing the potential effects of activities on the environment (Article 206). By comparison, no corresponding provisions with regard to environmental research are included in space treaties and other space law instruments developed at the international level.

Furthermore, UNCLOS also contains an overview of types of measures to be applied by States to prevent or minimize marine pollution.³⁸ However, UNCLOS grants States a considerable degree of discretion in their choice of appropriate measures. In particular, it does not require that environmental protection measures must always be adopted by States at the international level: States may adopt ‘individual or joint measures as appropriate’ to address marine pollution.³⁹ Further, international measures do not need take the shape of binding regulations or agreements: ‘soft law’ measures such as rules, standards or recommendations are also acceptable (if ‘appropriate’) and may indeed be preferable for States for a number of reasons. However, to meet its duty of due diligence, a State must actually consider what regulation, and at what level – individual, joint, global or regional, binding or not – will be adequate to address spaceflight pollution.

Article 194 clarifies that responsibility for taking measures is vested in the State holding ‘jurisdiction or control’ over activities that may cause damage to the marine environment of other States.⁴⁰ The State in whose territory the spaceport is located would clearly hold ‘jurisdiction or control’ over spaceflight activities within the meaning of Article 194. This would also be consistent with Article VI of the Outer Space Treaty, which assigns central responsibilities to the ‘appropriate’ State, which must authorize and properly supervise space activities by non-governmental entities in outer space.⁴¹

The notion of ‘jurisdiction or control’ may also include spaceflights conducted extraterritorially, that is, from launch sites located in other States or from the high seas. This is in line with the Outer Space Treaty.⁴² The duty to take appropriate measures to protect the marine environment thus also applies to spaceflight activities conducted from another State’s territory or from the high seas. Article 192 also requires a State (or States) to take measures with regard to marine pollution by space debris re-entering the Earth, including pollution of the high seas. However, identifying the State(s) holding ‘jurisdiction or control’ over an extraterritorially located object or activity resulting in marine pollution may be difficult. It is questionable whether Article 194 UNCLOS should be interpreted in light of the relevant space law provisions, at least where such interpretation may result in narrowing down the application of Part XII UNCLOS.

Further, it is problematic that UNCLOS does not clarify the competences and responsibilities of other States whose EEZs may be affected by spaceflights. As the Rockot case illustrates, a coastal State in whose EEZ spaceflight produces environmental impacts may find itself in a vulnerable and unclear legal position.⁴³ In this author’s view, the provisions of UNCLOS Part V entitle a coastal State to regulate or ban the use of its EEZ for jettisoning spaceflight residues by a foreign State, by virtue of coastal State jurisdiction over the EEZ.⁴⁴ Moreover, in light of the Part XII obligations described earlier, both the coastal State and the launching State(s) are under a positive obligation to take measures to prevent environmental harm to the EEZ.

Nevertheless, UNCLOS Part V does not provide for an obvious allocation of jurisdiction in such cases, challenging the coastal State’s jurisdiction to regulate pollution resulting from spaceflight of foreign origin. A relevant legal basis for resolving conflicts arising from lack of clear allocation of rights and jurisdiction in UNCLOS may be found in Article 59 UNCLOS. This provision addresses cases where UNCLOS does not expressly attribute rights or jurisdiction by requiring resolution of a problem ‘on the basis of equity and in the light of all the relevant circumstances, taking into account the respective importance of the interests involved to the parties as well as to the international community as a whole’. Protection of the marine environment from jettisoned space waste may, in principle, be one of the relevant interests under Article 59 (both of the coastal State and the international community). However, effective application of this provision is, in this author’s view, conditional on cooperation to facilitate interaction and conflict resolution between the States concerned and to include the interests of the ‘international community as a whole’ in this work.

6.2.3 Relevance of the Dumping Regime to Tackling Marine Pollution in the Space Sector

Section 5 of Part XII UNCLOS addresses specific sources of marine pollution and details the general rules of Article 194. Arguably, some of these provisions may provide a relevant normative basis to strengthen marine environmental protection from spaceflight pollution. This part examines Article 210, which requires States to take measures to prevent, reduce and control pollution of the marine environment by dumping. Importantly, according to this provision, States must ensure that national laws, regulations and measures prevent dumping from being carried out without permission from the competent authorities.

States are required to adopt relevant national rules and measures to prevent marine pollution by dumping that are no less effective in preventing, reducing and controlling such pollution than global rules and standards.⁴⁵ These international rules are laid down in the London Convention on Dumping (the London Convention)⁴⁶ as amended by the 1996 Protocol. The latter instrument extends the Convention provisions to include aircraft and imposes a prohibition on marine dumping, with a narrow exception.⁴⁷ The provisions of Article 210 UNCLOS are further detailed and strengthened in the London Convention with the 1996 Protocol, which transforms a ‘right’ into an ‘obligation’. In addition, dumping is regulated at the regional level, for example, by the Convention for the Protection of the Marine Environment of the North-East Atlantic (OSPAR Convention).⁴⁸

International rules on protection of the marine environment from pollution by dumping are potentially relevant for spaceflight-source pollution. First, provisions on marine dumping may be relevant to governing de-orbiting of end-of-life space objects and regulating pollution caused by jettisoned space residues on the high seas.⁴⁹ Second, the marine dumping regime may also be useful for regulation of spaceflight-source pollution within maritime zones under jurisdiction of a coastal State, including situations when spaceflight residues generated by launches of space objects from another State’s territory fall into maritime areas under national jurisdiction of a coastal State.⁵⁰

Thus, Article 210(5) UNCLOS precludes dumping within the territorial sea and the exclusive economic zone or onto the continental shelf without the express prior approval of the coastal State. The coastal State also has a right to regulate dumping within its maritime zones through a system of permits, regulations and controls. The wording of this provision may allow a coastal State to prohibit third States from using its EEZ for jettisoning spaceflight residues. It also specifies that a coastal State’s right to issue permits and regulate and control such dumping is subject to the duty to bring the matter up for ‘due consideration’ by those States that, by reason of their geographical situation, may be adversely affected by dumping.⁵¹ These may arguably be neighbouring States and States dependent on navigation or other activities in the waters where jettisoning is taking place.⁵²

The question is whether a coastal State within the meaning of the dumping regime may also be viewed as the ‘appropriate’ State for the purposes of Article VI of the Outer Space Treaty. The latter requires that the appropriate State must authorize and supervise space activities by its non-governmental entities.⁵³ This question is relevant for situations when a coastal State is acting as a launching State (from whose territory the launch is taking place), or as a State whose maritime zones are used by another State for jettisoning spaceflight residues. As pointed out earlier, the coastal State’s rights and obligations in the latter situation are not fully clear under general UNCLOS provisions and the Outer Space Treaty. If applicable, provisions on marine dumping laid down in Article 210 and the London Convention with Protocol would spell out a coastal State’s competences to regulate such cases more clearly.

Regrettably, spaceflight-source pollution is not included in the definition of dumping in UNCLOS and the London Convention.⁵⁴ The regime only regulates dumping from vessels, platforms and other man-made structures, or from aircraft at sea. While Article 4.2 of the 1996 Protocol also includes ‘any deliberate disposal at sea of vessels, aircraft, platforms or other man-made structures at sea’ (author’s italics), it is arguable whether jettisoned parts of space rockets and other space objects, including end-of-mission/de-orbited spacecraft, may be viewed as ‘aircraft’.⁵⁵ In any case, the definition of dumping expressly excludes disposal of wastes or other matter ‘incidental to, or derived from the normal operations’ of vessels, aircraft, platforms or other man-made structures at sea and their equipment.⁵⁶ Spaceflight-source pollution in the shape of jettisoned launch waste is part of a normal launch operation,⁵⁷ much like so-called operational discharges from ships. The marine dumping rules also differentiate between ‘deliberate’ and ‘incidental’ pollution, albeit without detailing what constitutes either type of pollution. Pollution resulting from an accident such as a space rocket explosion following a launch is likely not to be viewed as ‘dumping’ within the meaning of these regulations.

6.3 Assessment and Pathways to More Effective International Regulation of Spaceflight-Source Marine Pollution

6.3.1 Overview

The discussion in the previous section shows that the international environmental regime governing the space sector is fragmented and does not adequately regulate state responsibility for environmental measures in the spaceflight sector. Admittedly, UNCLOS establishes more far-reaching environmental obligations on States engaged with space activities than does the Outer Space Treaty, which only imposes a duty on States to conduct international consultations before starting activities with potentially harmful interference with activities by other States in outer space.⁵⁸ UNCLOS clarifies that States are responsible for protection of maritime areas, including the high seas, from any pollution, which would include spaceflight-source pollution.

However, the normative relevance and effectiveness of UNCLOS for spaceflight-source pollution is challenged by several factors. It often remains unclear which State should be responsible for taking appropriate measures to protect the marine environment from spaceflight-source pollution. It is also not clear what provisions would be feasible to develop, in what kind of instrument and what issues require international, rather than national, regulation. This may be partly explained by the absence of spaceflight-specific environmental provisions in UNCLOS and other international instruments, and the inherent ambiguity and normative weakness of general international environmental law, which is unable to fill the gaps in the space law and law of the sea regimes.

In this author’s view, the first step is to clarify and strengthen the relationship between international space law and the law of the sea. Currently, adequate interaction between the space law and law of the sea regimes is lacking at the normative and institutional level, which in turn stands in the way of developing environmental regulation in the space sector. Further, with regard to development of substantive environmental provisions in the spaceflight sector, unilateral (national) measures should arguably be supplemented by joint (international) state measures. To enable progress in this area, it is necessary to obtain sufficient knowledge about the environmental effects of spaceflight and to develop an adequate institutional framework to back up the normative and procedural dimension of environmental protection in the space sector.

6.3.2 Strengthening Knowledge about the Marine Environmental Impact of Spaceflight

UNCLOS Part XII Sections 2–3, which lay down provisions on inter-state cooperation on gathering and exchange of knowledge about spaceflight pollution, should be used actively by States responsible for spaceflights as well as by States affected by spaceflight pollution. The necessity for measures to protect the marine environment is normally determined by means of establishing appropriate scientific criteria for the formulation of rules (Article 201 UNCLOS), by advice from international bodies such as the International Council for the Exploration of the Sea (ICES), and by monitoring and assessing the environmental impact of spaceflights (Articles 204–206).

As pointed out earlier, an important impediment is the absence of sufficient knowledge on the environmental impact of the spaceflight sector, as available research on the marine environmental effects of space activities is rather scarce and appears unsatisfactory.⁵⁹ States should more actively apply UNCLOS provisions requiring them to gather and exchange knowledge on spaceflight pollution of the marine environment. This may ensure the necessary scientific basis for assessment of space launch effects on the marine environment and enable development of a systematic international approach to problems revealed.

Arguably, the present under-utilization by States of UNCLOS provisions on scientific research on the environmental impact of spaceflight may even lead to infringement of the due diligence obligation with regard to protection of the marine environment. It is generally recognized that the duty to conduct an environmental impact assessment (EIA) follows from general international environmental law as part of a State’s due diligence obligation, and is necessary for fulfilment of the international environmental law principle of prevention.⁶⁰ As EIA is an important – although not in itself sufficient – step towards collection and sharing of knowledge on the cumulative environmental effects of spaceflight, it is hence essential for the future development of environmental standards and requirements in the space sector.⁶¹

With regard to the marine environment, the duty to assess the potential effects of planned space activities would follow from Article 206 UNCLOS. The duty to conduct EIA also applies to activities with an impact on the environment in areas beyond the limits of national jurisdiction.⁶² UNCLOS also requires States to publish reports with the results of such assessment or communicate the results to a competent international organization.⁶³

However, UNCLOS leaves it to the responsible State to evaluate whether there are ‘reasonable grounds for believing’ that the threshold for EIA – ‘substantial pollution of or significant and harmful changes to the marine environment’ – is reached.⁶⁴ Thus, States enjoy wide discretion to determine whether an EIA should be required for spaceflight, and what activities more specifically form part of such assessment. For example, some States require an EIA for launch activities; however, there exists no consistent and uniform international approach to the scope of this requirement.⁶⁵

It is arguably necessary to harmonize approaches to EIA among spaceflight-active States by expressly including spaceflight pollution in the scope of relevant activities and by detailing the conditions and requirements for EIAs. In this respect, it would be more effective to address the issue through a global, rather than a regional, measure such as the forthcoming legally binding instrument on biodiversity in areas beyond national jurisdiction.

The Convention on Environmental Impact Assessment in a Transboundary Context (Espoo Convention)⁶⁶ also sets out more detailed rules for EIA, including rules on the duty to notify and consult each other and important procedural provisions. Regrettably, the Espoo Convention does not expressly include spaceflight and, in any case, does not have global reach in terms of its ratification status. Amendment of the Espoo Convention would be an important step forward. In the EU context, a corresponding change could arguably be achieved by amending existing secondary legislation.⁶⁷

6.3.3 Developing the Institutional Framework in the Space Sector to Include Environmental Matters

To meet their due diligence obligations to protect the environment from spaceflight-source pollution, it is also crucial for States to establish environmental cooperation in the spaceflight sector. Outer space law is based on the premise of ‘broad international cooperation in the scientific as well as the legal aspects of the exploration and use of outer space for peaceful purposes’.⁶⁸ UNCLOS explicitly requires States to cooperate directly or through ‘competent international organizations’ on matters of the law of the sea. Cooperation through an organization or an institution, in addition to direct bilateral or multilateral cooperation on an ad hoc basis, has a number of advantages for regulating issues of global concern. For example, in the shipping sector, States acting through the International Maritime Organisation (IMO) have over time developed international safety and environmental standards, obligations and procedures. In the space sector, development of international emission and other environmental safety standards comparable to those adopted under the auspices of IMO (e.g., MARPOL) would be far too premature.⁶⁹ It would be feasible to begin by tackling the lack of an adequate institutional framework necessary to facilitate inter-state dialogue and to support cooperation on research, harmonization and monitoring of environmental legal standards in the space sector.⁷⁰ Presently, there are no international institutions that hold a clear mandate to address pollution of the marine environment by spaceflights. Better interaction between space law and the law of the sea may be achieved by stronger institutions with clearer competence for protection of the marine environment from pollution caused by spaceflight. This could also preclude unnecessary fragmentation of the environmental legal framework in the spaceflight sector, ensuring that international legal solutions consider protection of the Earth’s environment as a whole.

An internationally coordinated approach through an institution responsible for international legal development in the space sector such as COPUOS, supplemented by inter-institutional cooperation with other competent international organizations, is indispensable to pave the way for prospective harmonization steps. It may also be feasible to adjust and strengthen the existing regulatory and institutional framework for spaceflight pollution, for example, by expanding the marine dumping regime. As pointed out earlier, the London Convention and related instruments contain important regulatory tools that are not present in the space treaties or UNCLOS. Expanding the marine dumping regime to include ‘operational’ (normal) pollution by jettisoned components of space objects and by de-orbited end-of-mission spacecraft may contribute to strengthening legal protection of the marine environment from spaceflight pollution. The relevance of the dumping regime for the spaceflight sector has been under examination via the auspices of the IMO since 2016, but this work has not yet been concluded.⁷¹ It is advisable to continue the work initiated by the IMO and UN COPUOS to evaluate expansion of the London Convention to the spaceflight sector and accordingly to amend the 1996 Protocol in order to include disposal of jettisoned space objects into the maritime environment.

6.4 Conclusions

Spaceflight-source pollution of the marine environment is not yet perceived by States as a problem that requires immediate international measures. A likely explanation is lack of sufficient knowledge about cumulative, long-term and transboundary effects on the oceans of space launches and other spaceflight-related activities. This may partly be explained by a lack of clear environmental competences of international outer space governance institutions. Although some marginal steps have been taken in the right direction, namely, to assess application of the international dumping regime to jettisoned space launch waste, the issue is not a priority for inter-state cooperation and the competent institutions in the maritime and space sector. Thus, international environmental rule of law remains at an embryotic stage of development in the space sector. There is a clear need for development of a more comprehensive, international framework to tackle the environmental impact of spaceflights.

International environmental law requires States to exercise due diligence in taking adequate measures to protect the environment from pollution by all kinds of industrial activities. However, an unclear and fragmented international legal context may hardly help States meet their obligations to protect the marine environment from spaceflight pollution. A more pro-active approach is nevertheless required from States at the individual and international level. Here, initial steps should be aimed at gathering and sharing knowledge about the marine environmental effects of spaceflight. To enable development of environmental rule of law in the space sector, including its maritime dimension, it is also crucial to build up an adequate institutional framework at the international level that can support the development of harmonized substantive provisions and facilitate cooperation on environmental matters. Such an institutional framework should be anchored in the existing international institutions – importantly, COPUOS and the IMO – but their responsibility for environmental matters needs to be clarified and, if necessary, strengthened. Last but not least, cross-institutional cooperation is indispensable to ensure that legal solutions are holistic, protecting the ocean environment, marine ecosystems and the Earth’s environment as a whole.