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Plastics in the marine environment: Legal approaches for international action
V~,lum¢ 18/Numher
6B/.lune 1987 o1)25-32hX/87 S3.01)+(Llb0 10 198"/Pergamon Jaulrn~th Lid.
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Plastics in the Marine Environment: Legal Approaches for International Action SALLY ANN LENTZ The Oceanic Society, 153616th Street, N. W., Washington, D.C. 20036, USA Serious problems caused by the presence of plastics and other synthetic materials in the marine environment are well demonstrated. Legal regimes exist to address those problems internationally and regionally through the Law of the Sea Convention, the London Dumping Convention, an international agreement on vessel-source pollution, and regional conventions. This paper describes and compares those legal regimes. All provide appropriate forums for implementing specific mitigation measures and all should be fully utilized to regulate plastic pollution of the ocean. Problems caused by plastics and other persistent synthetic materials in the marine environment have raised growing public concern (International Maritime Organization 1985a). Mounting evidence demonstrates that large numbers of marine mammals (Fowler 1985; Henderson 1985; Shaughnessy, 1980), birds (Day et aL, 1984), turtles (Balazs, 1984) and commercially important fish are lost as a result of entanglement in and ingestion of plastic materials. Lost or discarded fishing nets (Degange & Newby, 1980; Eisenbud, 1984; Greenpeace, 1985; High, 1985), plastic bags, plastic spherules (Carpenter et aL, 1972), and plastic packing straps and rings all contribute to the problem. The marine debris problem is attributed not only to dumping of municipal waste and ship-generated garbage, but also to the discharge of materials 'Wia inland waterways and ouffalls from plants that manufacture plastic" (Wehle & Coleman, 1983), These landbased sources ar8 more appropriately regulated by domestic or regional agreements, whereas at-sea activities can and should be regulated internationally, and complemented by stronger domestic laws. Formal guidelines for the regulation of land-based sources of marine pollution were formulated by an ad-hoc working group of experts meeting in Montreal, Canada, in April, 1985 (United Nations Environment Programme, 1985). This paper analyses existing international legal regimes and explores ways in which the legal norms embodied in those regimes may be implemented. The paper excludes consideration of domestic taws addressing the problem. US law is discussed in detail elsewhere (Bean, 1984, 1987).
Three global international conventions are detailed below, beginning with a discussion o f Law of the Sea Convention (United Nations, 1982) provisions relevant to the plastics problem. Two conventions, implemented under the auspices of the International Maritime Organization and directly addressing the problem o f plastics and marine debris, are the 1978 Protocol to the International Convention for the Prevention of Pollution from Ships (1973) (MARPOL), and the Convention on the Prevention of Pollution by Dumping of Wastes and Other Matter (1972), (London Dumping Convedtion or LDC). Pertinent regional agreements are discussed after the global conventions. The Law of the Sea Convention The Law of the Sea Convention (hereinafter LOS Convention) contains several provisions prohibiting pollution of the marine environment. It deals with synthetic waste materials in general prohibitions against dumping, vessel source pollution, and land-based sources, and in those provisions that promote conservation and wise management of living resources. Although the LOS Convention does not specifically acknowledge the plastics problem (except regarding entanglement of nets in submarine cables or pipelines), it does provide encouragement for states to develop domestic laws and to address marine pollution problems internationally. 'Marine pollution' is defined under Article 5(1) as including the discharge of substances or energy which results, or is likely to result, in "such deleterious effects as harm to living resources and marine life .. '.'. A general obligation of states to protect and preserve the marine environment is set out in Article 192. Further, states are required, under Article 194(1) to take all necessary measures, individually or jointly, to prevent pollution of the marine environment from any source, using the best practicable means at their disposal and in accordance with their capabilities. Article 207(1) requires states to account for internationally agreed upon rules, and for certain matters-including seabed activities, dumping, and vessel-source pollution--domestic laws are expressly required to be no less effective than international standards. Article 197 of the LOS Convention requires states to cooperate on a regional and global basis to establish international 361
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regimes for the protection of the marine environment. The measures taken must address all sources of marine pollution including: t. The release of toxic, harmful or noxious substances from land-based sources, from or through the atmosphere, or by dumping; 2. Pollution from vessels; 3. Pollution from installations and devices used in the exploration or exploitation of the natural resources of the seabed and subsoil and from other installations operating in the marine environment, Several provisions of the LOS Convention relate to the conservation of living resources and proper management of fisheries and encourage measures that would mitigate adverse effects of plastics on living resources. For example, all states are directed, under Article 117, to cooperate generally with other states to establish measures necessary to conserve living resourges of the high seas. Coastal states are required to adopt measures for conservation and management of living sources in the exclusive economic zone under Article 61. More specifically, Article 115 requires states to adopt laws indemnifying ship owners for damages sustained when they lose a net or other fishing gear in order to avoid damage to submarine cables or pipelines. The dynamic, evolving, status of the LOS Convention is perhaps its most important feature. Articles 237 and 311 establish a symbiotic relationship between the LOS Convention and other issue-specific environmental agreements, such as the London Dumping Convention, vessel-source pollution treaties, and Regional Seas conventions. As long as those agreements are consistent with LOS Convention objectives, the adoption of issue-specific international rules and standards is considered universally applicable under the LOS Convention. Thus, while the LOS Convention has not yet entered into force, its environmental obligations and duties may be applied through member states' actions under special agreements that address marine environmental concerns. MARPOL and the LDC are two issue-specific Conventions that could be embraced by the LOS Convention. MARPOL The International Convention for the Prevention of Pollution from Ships (MARPOL) recognizes that vessels are a significant and controllable source of marine environmental pollution Onternational Maritime Organization, 1982). Five categories of vessel source pollution (oil, chemicals, hazardous substances in packaged form, sewage and garbage) are regulated under MARPOL, respectively, through its five annexes. Only two of MARPOL's five annexes, (Annexes I and II, governing oil and chemicals in bulk, respectively) have entered into force, having obtained ratification by nations representing at least 50% of the world's shipping tonnage. Annex V of MARPOL contains a provision that prohibits "the disposal into the sea of all plastics, including but not limited to synthetic ropes, synthetic fishing nets and plastic garbage bags". Regulation 3(1Xa) provides a prohibition on disposal of plastics outside 'special areas' and Regulation 5(2Xa)(1 ) 362
provides for tile same prohibition within 'special areas'. 'Special areas' for purposes of Annex V include the Mediterranean Sea area, the Baltic Sea area, the Black Sea area, the Red Sea area and the 'Gulfs area', Annex V of MARPOL has not yet entered into force, having obtained ratification by 24 nations representing only 41.24% of the world's shipping tonnage. Once it enters into force, implementation of Annex V is expected to make a significant contribution to reducing the amount of plastics and other debris in the marine environment because it specifically addresses the problem. Under U.S. law, ship-generated garbage goes largely unregulated beyond the territorial sea. It is likely that most states, including the US, will find it necessary to adopt more stringent domestic laws to comply with Annex V. Annex V does allow for some discharges of garbage that are not clearly justified, and it is expected that strengthening of the Annex will occur through amendmeals once it has entered into force. However, the Working Group on Annex V (a subcommittee of the Marine Environment Protection Committee of the IMO) has already suggested that Regulation 6 of Annex V be clarified prior to its entry into force (International Maritime Organization, 1985b). Regulation 6 provides several exceptions to the prohibition of discharges, including "the accidental loss of synthetic fishing nets or synthetic material incidental to the repair of such nets, provided that all reasonable precautions have been taken to prevent such loss". The Working Group agreed that the phrase "incidental to the repair of such nets" be deleted from this exception. Regulation 6, as amended, would except only accidental loss of nets, and would not specifically except nets or fragments lost (or discarded) during the course of repair, since such an exception could render the Annex ineffective. This annex should be recognized as a global common denominator, providing minimum guide-lines. Too often the minimum guidelines established internationally are treated as the maximum standards to be applied. Domestic legislation must go beyond these minimum guidelines to address the problem most effectively.
London Dumping Convention The LDC is the only global agreement concerned solely with the disposal of wastes in the sea by dumping. Written in 1972, that agreement represented a significant step forward in the international management of our ocean resources. The basic philosophy of the LDC is that the nations t,f the world will work together to ensure that the marine environment becomes safe from the dangers of dumping. Protection of the marine environment, broadly defined, is the foundation of the LDC--its object and purpose. Annex I of the LDC lists wastes or other matters that are prohibited from dumping under Article IV of the LDC, and includes (in paragraph 4): [p]ersistent plastics and other persistent synthetic materials, for example, netting and ropes, which may
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float or may remain in suspension in the sea in such a manner as to interfere materially with fishing, navigation or other legitimate uses of the sea. The plastic and other materials responsible for problems of entanglement and ingestiorl are the kinds of materials governed by this provision. The LDC recognizes that these materials constitute an enviro/amental hazard. The use of the sea as a habitat for living resources should be considered a 'legitimate use' under this provision, and therefore the destruction of living resources resulting from the dumping of plastics is covered. The LDC defines dumping as "any deliberate disposal at sea of wastes or other nmtter from vessels, aircraft, platforms or other man-made structures at sea" (Article III (l)(a)(i). Dumping as defined under the LDC does not include: the disposal at sea of wastes or other matter incidental to, or derived from the normal operations of vessels, aircraft, platforms, or other man-made struelures at sea and their equipment, other than wastes or other matter transported by or to vessels, aircraft, platforms, or other man-made structures at sea, operating for the purpose of disposal of such matter or derived from the treatment of such wastes or other matter on such vessels, aircraft, platforms or structures. Based on this definition, the LDC is generally applied to discharges of waste and garbage loaded onto the ship from land-based sources and has not been applied to ship-generated garbage. A broader interpretation of its provisions to include ship-generated garbage would significantly contribute to mitigation of marine debris. Such a broad interpretation could be achieved by simply limiting the definition of the term •normal operations" under the LDC to the actual mechanical operation of the vessel itself, excluding activities that occur on board, such as the generation of crew-related garbage and discharge of fishing nets. Such an interpretation would appear to be consistent with the purpose and the spirit of the LDC to prevent pollution of the marine environment from dumping. R e l a t i o n s h i p o f L D C and M A R P O L It has been suggested that both MARPOL and the LDC cannot simultaneously apply to the disposal of plastic materials because Article 2(3)(b)(i) of MARPOL purports to exclude from its jurisdiction discharges which constitute 'dumping' under the London Dumping Convention (Bean, 1984). This view restricts application of the LDC to discharge of waste cargo carried to sea for the purpose of dumping--all other waste discharged at sea would be governed by MARPOL Since Annex V of MARPOL has not entered into force, the LDC is the only binding international agreemere that addresses the issue of plastics and marine debris. Therefore, the international community currenfly must rely on the LDC and domestic legislation to address this problem. Given its primary objective to prevent marine pollution, this author believes the LDC
should be interpreted as broadly as possible in order to achieve its fundamental goals. The potential overlapping jurisdiction of the LDC and MARPOL for discharges of ship-generated plastics and other debris was recognized but not resolved at the 9th Consultative Meeting of the LDC. This meeting adopted a resolution (International Maritime Organization, 1985c) that recognizes a general prohibition on dumping of plastics under the LDC and the competence of MARPOL Annex V in prohibiting discharges from vessels. The resolution also pledged coordination of activities with other competent bodies and urged information dissemination and identification of practicable means to reduce the hazards, The Report of the Ninth Consultative Meeting (International Maritime Organization, 1985c), however, left the jurisdictional issue extremely vague by stating: +'The Meeting felt that the deliberate disposal of shipgenerated persistent plastic and synthetic material, including fishing nets, whether or not such deliberate disposal is co~red by Annex V of MARPOL 73/78 or constitutes dumping under the Convention, is a source of marine pollution which the Convention calls upon all Contracting Parties to control" (Emphasis added). Cooperation is needed to define competency in this area more clearly. As of October 1985, 60 states, including the U.S., have ratified the LDC and are thereby bound by its provisions, whereas only 38 states have ratified MARPOL (International Maritime Organization, 1985d). Further, 35 states that have ratified the LDC have not as yet ratified MARPOL. Those states will not be bound by Annex V even after it enters into force, except to the extent it is considered to constitute customary international law. The larger number of states adhering to the LDC provides an additional argument for pursuing efforts to address the problem in the context of that Convention, if at all possible.
Regional Agreements In addition to global international regimes, regional efforts also address worldwide concerns, as well as those common to a particular region. Several regional agreements specifically recognize problems resulting from marine debris and offer a promising forum to address marine pollution issues. Oslo Convention The Convention for the Prevention of Marine Pollution By Dumping From Ships and Aircraft (1972), popularly known as the Oslo Convention, regulates dumping activities generally in the area of the NorthEast Atlantic, excluding the Baltic and Mediterranean Seas. The Osio Convention prohibits dumping of plastics and other synthetic materials almost identically to the LDC. Article 5 of the Oslo Convention prohibits dumping of all substances listed in Annex I to the Convention. The list includes (in para. 6): "|p]ersistent plastics and other persistent synthetic materials which may float or remain in suspension in the sea, and which may seri363
MarinePollutionBullelin ously interfere with fishing and navigation, reduce amenities, or interfere with other legitimate uses of the sea". In order to tie this prohibition to the plastics problem, the term 'legitimate uses' would have to include use of the ocean as a habitat for living resources. Dumping is defined in Article 19 of the Oslo Convention as follows: "any deliberate disposal of substances and materials into the sea by or from ships or aircraft other than: a. any discharge ineidemal to or derived from the normal operation of ships and aircraft and their equipment; b. the placing of substances and materials for a purpose other than the mere disposal thereof, if not contrary to the aim of this Convention". Hels#~ki Con~ention Another example of a regional agreement that addresses the problem of marine debris is the Convention on the Protection of the Marine Environment of the Baltic Sea Area (1974) (hereinafter the Helsinki Convention). Article 3(1) of the Helsinki Convention generally directs the contracting parties "[tlo take all appropriate legislative, administrative or other relevant measures in order to prevent and abate pollution and to protect and enhance the marine environment of the Baltic Sea Area". Further, Regulation 8,b.l.a.(1) of Annex IV of that convention explicitly prohibits the discharge of "all plastics, including but not limited to synthetic ropes, synthetic fishing nets and plastic garbage bags". As in M A R P O L Annex V, an exception is made to the prohibition for accidental loss of synthetic fishing nets.
Pacific Convention signed in 1981; 5. tile Jeddah Regional Convention for the Conservation of the Red Sea and Gulf of Aden Environment, signed in 1982; and 6. the Wider Caribbean Region Convention signed in 1983. The Conventions contain general obligations of states to undertake appropriate measures to prevent, abate, and combat pollution from a variety of sources. The key to success of the regional seas conventions is the adoption and implementation of protocols on special problems. The basic legal norms reflected in Regional Seas conventions could be translated into practical solutions through the adoption of such protocols. For example, a separate protocol could be devoted entirely to the problem of plastics and marine debris. Alternatively, various aspects of the plastics problem could be addressed in the context of other protocols, such as those relating to land-based sources of marine pollution, vessel-source pollution and dumping. A n example of this approach is contained in the Protocol for the Protection of the Mediterranean Sea Against Pollution from Land-Based Sources, a protocol to the Barcelona Convention which established the Regional Seas Programme for the Mediterranean. Article 5 of the Protocol directs parties to undertake elimination of pollution from substances listed in Annex I to the protocol. That list includes (in pare. 7) "persistent synthetic materials which may float, sink or remain in suspension and which may interfere with any legitimate use of the sea". The parties are further directed to implement, jointly or individually, necessary programmes and measures to achieve this goal, and are directed to develop common emissions standards and standards for use.
UNEP Regional Seas Pmgmnmte The United Nations Environment Programme I m p l e m e n t a t i o n o f L e g a l Norms (UNEP) assists nations in protection of the marine Except for a provision for adequate reception facienvironment through its Regional Seas Programme. Divided into 11 designated regions, more than 120 of lities to receive wastes under Annex V of MARPOL, the world's approximately 130 coastal states are neither global nor regional conventions on marine cooperating to reduce pollution and conserve living pollution provide specific measures to facilitate mitigaresources. States in each region assess the quality of tion of the marine debris problem. It may be necessary their marine and coastal environments, identify sources to institute practical solutions at the international level of environmental degradation, regulate activities actu- to achieve effective implementation and enforcement of ally or potentially causing pollution, manage living the general prohibitions. Continued efforts to provide public information and resources, and preserve rare species and habitats. This is accomplished by compiling 'action plans' that outline education programmes on the problem are a critical areas of cooperation for each region and by adopting first step in eliminating marine debris. Public awareness conventions that provide legal frameworks for the ac- will encourage mitigation efforts. Second, with regard to ship-generated garbage, economically attractive comtivities. U N E P is responsible for 'action plans' in eleven paction and recycling technologies could be employed regional areas, and regional conventions have been on vessels to encourage retention of plastics. Third, the developed in six of these areas. The six conventions are: prevention of lost fishing gear could be facilitated by 1. the Barcelona Convention for the Protection of the developing a system for identifying sites of repeated net Mediteranean Sea against Pollution, signed in 1976, hang-ups and possibly limiting fishing in those areas. entered into force in 1978; 2. the Kuwait Regional Con- Fourth, the adverse effects of lost fishing gear could be vention for Cooperation on the Protection of the mitigated through a system of gear marking or through Marine Environment from Pollution (which covers the gear modifications, such as the development and Gulf area) signed in 1978, entered into force in 1980; 3. required use of biodegradable fishing gear. Fifth, the use the Abidjan Convention for Cooperation in the Protec- of biodegradable packaging could also diminish adverse tion and Development o f the Marine and Coastal Envi- impacts of ship-generated garbage. Sixth, retention end ronmem of the West and Central African Region signed retrieval of plastics could be further encouraged by a in 1981, entered into force in 1984; 4. the South-East system of financial rewards or penalties. Seventh, an 364
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expanded observer network would strengthen enforcement efforts. Finall); efforts could be made to identify areas of ecological sensitivity because of their role in breeding, migration, feeding or other factors, where marine creatures are particularly vulnerable to entanglement. These mitigation measures have been endorsed as possible solutions by the United States (Food and Agriculture Organization, 1985; Colin, 1985). All should be utilized to achieve the broadest application of the legal norms set out above. In addition, efforts must continue to educate the public and to better understand the nature and extent of the problem through scientific research. Coordination of action among these mitigative approaches is required to provide a safe environment for the precious living resources of the sea.
Balazs, G. H. (1985), Impact of ocean debris on marine turtles: entanglement and ingestion. In I'mceedings of the tlbr'~hop on the l~*te and Itnpact of Marine Debris, 27-29 November, 1984, Honolulu, Hawaii (R. S. Shomura & H. O. Yoshida, eds), pp. 387,429. Bean, M. J. (1984). United States and International Authorities Applicable to Entanglcmem of Marine Mammals and Other Organisms in Lost or Discarded Fishing Gear and Other Debris. A Report to the Marine Mammal Commission, U.S. Department of Commerce, National Technical Information Service, PB85-160471. Springfield, VA. Bean, M. J. (1987). Legal strategies appropriate for reducing persistent plastics in the marine environment, Mar. Pollnr Bull 18, 357-360. Colin, A. J. (1985). Letter to the Honorable John D. Negroponte, November 18, 1985, National Oceanic and Atmospheric Administration, Washington, DC. Carpenter, E. J., Anderson, S. l., Harvey, G. R., Miklas, H, P. & Peck. B. B. (1972). Polystyrene spherules in coastal waters, Science 178, 749-750. Convention for the Prevention of Marine Pollution by Dumping from Ships and Aircraft (Oslo Convention). (1972). Int'l. Leg. Mats, 1092 II 262. Convemion to the Protection of the Marine Environment of the Baltic Sea Area (Helsinki Convention). (1974). lull. Leg, Mats, Day, R. H., Wehle, D. H. S, & Coleman, F. C. (1985). Ingestion of plastic pollutants by marine birds. In Proceedings of the gt'orkshop on the Fate and Impact o f Marine Debris, 27-29 November, 1984, Honolulu, Hawaii (R. S. Shomura & H. O. Yoshida, eds), pp. 344387. Degange, A. R. & Newby, T. C. (1984). Mortality of seabirds and fish in a lost salmon drlftnet. Mar. Pollnt. Ball. 1 I, 322-323. Eisenbud, R. (1984). The Pelagic Driftnet. Oceanus 17, 76-7% Fowler, C. W. (t985). An evaluation of the role of entanglement in the population dynamics of r~rthern fur seals on the Pribilof Islands. In
I'nn'eedings o f the Workshop on the 1:ate and h npaet of Marine Debr£~, 27-29 November, 1984, Honolulu, Hawaii (R. 8. Shomura & It, O. Yoshida, eds), pp, 291-3tl7. l:~md and Agriculture Organization. (1985). I'roteetion of living resources from entanglement in fishing nets and debris. Commhtce on Fisheries, Food and Agrieuhure Organization of the United Nations, Sixteenth Session, 22.26 April 1985, Dec. COFI/85/7. Greenpeace. (1985). Driftnets. Greenpeace Wildlife Ocean Ecology Series. Henderson, H. R. (1985). A review of Hawaiian monk seal entanglements in marine debris. In Proceedings of the Workshop on the tare attd Impact of Marine Debris, 27-29 November, 1984, Honolulu, Hawaii (R. S. Sbomura & H, O. Yoshida, eds], pp. 326-335. High, W. L. (1985). Some consequences of lost fishing gear, In Proceed. h~gs t~fthe Bbrkshop on the Fate attd hnpact of Marine Debris, 27-29 November, 1984, Honolulu, Hawaii (R S. Shomura & tL O. Yoshida, eds), pp. 430-437. International Mar/time Organization (IMO). (1982). Inter-governmental Conference on the Convention on the Dumping of Wastes at Sea, London, 30 October-13 November, 1972. Final Act of the Conference with attachments including the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter. (! 982 Edition) IMO, London. International Maritime Organization. (1985a). Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter. Nnte by the Secretariat, Environmental hazards caused by the loss or disposal at sea of fishing nets and other marine debris, LDC.9/INF.4 (15 July, 1985), International Maritime Organization, London. International Maritime Organization. (1985b). Marine Environment Protection Committee. Report of the Marine Environment Protection Committee on Its Twenty-Second Session. pp. 25-26. MEPC 22/21 (30 December, 1985). International Maritime Organization. London. International Maritime Organization. (1985e). Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Mattes. Report of the Ninth Consultative Meeting (See para. 7.5 and Annex 6). LDC 9/12 0 8 October, 1985), International Maritime Organization, London. International Maritime Organization. (t985d). Status of International Convemions Relating to Marine Pollution of which IMO is Depository or is Responsible for Secsctariat Duties. MEPC 22/2 (28 October, 1985). International Maritime Organization, London. Shaughnessy, P. D. (1980). Entanglement of Cape fur seals with manmade objects. Mar. Pollut. Bull, 11,332-336. Shomura, R. S. & Yoshida, H. O. (eds). (1985). Proceedings of the Workshop on the Fate and Impact oi" Marhre Debris. 27-29 November, 1984, Honolulu, Hawaii. US NOAA Teeh Mere NOAATM-NMFS-SWFC-54, United Nations. (1982). United Nations Convention on the Law of the Sea. UN D e c . A/CONE 62/122, December I0, I982. United Nations Environment Programme. (1985). Ad hoe Working Group of Experts on the Protection of the Marine Environment against Pollution from Land-based Soprees. Draft Fiuai Report of the Working Group Part 4. Montreal Guidelines for the Proteclion of the Marine Environment against Pollution from Land-based Sources. UNEP/WG. 120/LA/Add.2, April 18, 1985. Wehte, D. H. S. & Coleman, E C. (1983). Plastics at Sea. Natural History 2, 20-26.
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M a m w I~dluliotl Illdl¢lith VoL | 8, Nm 611,pp. 36,1-.~t~5.1987. Pfitlled itl (~lglll |h'Jlain.
Plastics in the Marine Environment: Legal Approaches for International Action SALLY ANN LENTZ The Oceanic Society, 153616th Street, N. W., Washington, D.C. 20036, USA Serious problems caused by the presence of plastics and other synthetic materials in the marine environment are well demonstrated. Legal regimes exist to address those problems internationally and regionally through the Law of the Sea Convention, the London Dumping Convention, an international agreement on vessel-source pollution, and regional conventions. This paper describes and compares those legal regimes. All provide appropriate forums for implementing specific mitigation measures and all should be fully utilized to regulate plastic pollution of the ocean. Problems caused by plastics and other persistent synthetic materials in the marine environment have raised growing public concern (International Maritime Organization 1985a). Mounting evidence demonstrates that large numbers of marine mammals (Fowler 1985; Henderson 1985; Shaughnessy, 1980), birds (Day et aL, 1984), turtles (Balazs, 1984) and commercially important fish are lost as a result of entanglement in and ingestion of plastic materials. Lost or discarded fishing nets (Degange & Newby, 1980; Eisenbud, 1984; Greenpeace, 1985; High, 1985), plastic bags, plastic spherules (Carpenter et aL, 1972), and plastic packing straps and rings all contribute to the problem. The marine debris problem is attributed not only to dumping of municipal waste and ship-generated garbage, but also to the discharge of materials 'Wia inland waterways and ouffalls from plants that manufacture plastic" (Wehle & Coleman, 1983), These landbased sources ar8 more appropriately regulated by domestic or regional agreements, whereas at-sea activities can and should be regulated internationally, and complemented by stronger domestic laws. Formal guidelines for the regulation of land-based sources of marine pollution were formulated by an ad-hoc working group of experts meeting in Montreal, Canada, in April, 1985 (United Nations Environment Programme, 1985). This paper analyses existing international legal regimes and explores ways in which the legal norms embodied in those regimes may be implemented. The paper excludes consideration of domestic taws addressing the problem. US law is discussed in detail elsewhere (Bean, 1984, 1987).
Three global international conventions are detailed below, beginning with a discussion o f Law of the Sea Convention (United Nations, 1982) provisions relevant to the plastics problem. Two conventions, implemented under the auspices of the International Maritime Organization and directly addressing the problem o f plastics and marine debris, are the 1978 Protocol to the International Convention for the Prevention of Pollution from Ships (1973) (MARPOL), and the Convention on the Prevention of Pollution by Dumping of Wastes and Other Matter (1972), (London Dumping Convedtion or LDC). Pertinent regional agreements are discussed after the global conventions. The Law of the Sea Convention The Law of the Sea Convention (hereinafter LOS Convention) contains several provisions prohibiting pollution of the marine environment. It deals with synthetic waste materials in general prohibitions against dumping, vessel source pollution, and land-based sources, and in those provisions that promote conservation and wise management of living resources. Although the LOS Convention does not specifically acknowledge the plastics problem (except regarding entanglement of nets in submarine cables or pipelines), it does provide encouragement for states to develop domestic laws and to address marine pollution problems internationally. 'Marine pollution' is defined under Article 5(1) as including the discharge of substances or energy which results, or is likely to result, in "such deleterious effects as harm to living resources and marine life .. '.'. A general obligation of states to protect and preserve the marine environment is set out in Article 192. Further, states are required, under Article 194(1) to take all necessary measures, individually or jointly, to prevent pollution of the marine environment from any source, using the best practicable means at their disposal and in accordance with their capabilities. Article 207(1) requires states to account for internationally agreed upon rules, and for certain matters-including seabed activities, dumping, and vessel-source pollution--domestic laws are expressly required to be no less effective than international standards. Article 197 of the LOS Convention requires states to cooperate on a regional and global basis to establish international 361
Marine P~llution Bulletin
regimes for the protection of the marine environment. The measures taken must address all sources of marine pollution including: t. The release of toxic, harmful or noxious substances from land-based sources, from or through the atmosphere, or by dumping; 2. Pollution from vessels; 3. Pollution from installations and devices used in the exploration or exploitation of the natural resources of the seabed and subsoil and from other installations operating in the marine environment, Several provisions of the LOS Convention relate to the conservation of living resources and proper management of fisheries and encourage measures that would mitigate adverse effects of plastics on living resources. For example, all states are directed, under Article 117, to cooperate generally with other states to establish measures necessary to conserve living resourges of the high seas. Coastal states are required to adopt measures for conservation and management of living sources in the exclusive economic zone under Article 61. More specifically, Article 115 requires states to adopt laws indemnifying ship owners for damages sustained when they lose a net or other fishing gear in order to avoid damage to submarine cables or pipelines. The dynamic, evolving, status of the LOS Convention is perhaps its most important feature. Articles 237 and 311 establish a symbiotic relationship between the LOS Convention and other issue-specific environmental agreements, such as the London Dumping Convention, vessel-source pollution treaties, and Regional Seas conventions. As long as those agreements are consistent with LOS Convention objectives, the adoption of issue-specific international rules and standards is considered universally applicable under the LOS Convention. Thus, while the LOS Convention has not yet entered into force, its environmental obligations and duties may be applied through member states' actions under special agreements that address marine environmental concerns. MARPOL and the LDC are two issue-specific Conventions that could be embraced by the LOS Convention. MARPOL The International Convention for the Prevention of Pollution from Ships (MARPOL) recognizes that vessels are a significant and controllable source of marine environmental pollution Onternational Maritime Organization, 1982). Five categories of vessel source pollution (oil, chemicals, hazardous substances in packaged form, sewage and garbage) are regulated under MARPOL, respectively, through its five annexes. Only two of MARPOL's five annexes, (Annexes I and II, governing oil and chemicals in bulk, respectively) have entered into force, having obtained ratification by nations representing at least 50% of the world's shipping tonnage. Annex V of MARPOL contains a provision that prohibits "the disposal into the sea of all plastics, including but not limited to synthetic ropes, synthetic fishing nets and plastic garbage bags". Regulation 3(1Xa) provides a prohibition on disposal of plastics outside 'special areas' and Regulation 5(2Xa)(1 ) 362
provides for tile same prohibition within 'special areas'. 'Special areas' for purposes of Annex V include the Mediterranean Sea area, the Baltic Sea area, the Black Sea area, the Red Sea area and the 'Gulfs area', Annex V of MARPOL has not yet entered into force, having obtained ratification by 24 nations representing only 41.24% of the world's shipping tonnage. Once it enters into force, implementation of Annex V is expected to make a significant contribution to reducing the amount of plastics and other debris in the marine environment because it specifically addresses the problem. Under U.S. law, ship-generated garbage goes largely unregulated beyond the territorial sea. It is likely that most states, including the US, will find it necessary to adopt more stringent domestic laws to comply with Annex V. Annex V does allow for some discharges of garbage that are not clearly justified, and it is expected that strengthening of the Annex will occur through amendmeals once it has entered into force. However, the Working Group on Annex V (a subcommittee of the Marine Environment Protection Committee of the IMO) has already suggested that Regulation 6 of Annex V be clarified prior to its entry into force (International Maritime Organization, 1985b). Regulation 6 provides several exceptions to the prohibition of discharges, including "the accidental loss of synthetic fishing nets or synthetic material incidental to the repair of such nets, provided that all reasonable precautions have been taken to prevent such loss". The Working Group agreed that the phrase "incidental to the repair of such nets" be deleted from this exception. Regulation 6, as amended, would except only accidental loss of nets, and would not specifically except nets or fragments lost (or discarded) during the course of repair, since such an exception could render the Annex ineffective. This annex should be recognized as a global common denominator, providing minimum guide-lines. Too often the minimum guidelines established internationally are treated as the maximum standards to be applied. Domestic legislation must go beyond these minimum guidelines to address the problem most effectively.
London Dumping Convention The LDC is the only global agreement concerned solely with the disposal of wastes in the sea by dumping. Written in 1972, that agreement represented a significant step forward in the international management of our ocean resources. The basic philosophy of the LDC is that the nations t,f the world will work together to ensure that the marine environment becomes safe from the dangers of dumping. Protection of the marine environment, broadly defined, is the foundation of the LDC--its object and purpose. Annex I of the LDC lists wastes or other matters that are prohibited from dumping under Article IV of the LDC, and includes (in paragraph 4): [p]ersistent plastics and other persistent synthetic materials, for example, netting and ropes, which may
Volume 18/Number 613/June 1987
float or may remain in suspension in the sea in such a manner as to interfere materially with fishing, navigation or other legitimate uses of the sea. The plastic and other materials responsible for problems of entanglement and ingestiorl are the kinds of materials governed by this provision. The LDC recognizes that these materials constitute an enviro/amental hazard. The use of the sea as a habitat for living resources should be considered a 'legitimate use' under this provision, and therefore the destruction of living resources resulting from the dumping of plastics is covered. The LDC defines dumping as "any deliberate disposal at sea of wastes or other nmtter from vessels, aircraft, platforms or other man-made structures at sea" (Article III (l)(a)(i). Dumping as defined under the LDC does not include: the disposal at sea of wastes or other matter incidental to, or derived from the normal operations of vessels, aircraft, platforms, or other man-made struelures at sea and their equipment, other than wastes or other matter transported by or to vessels, aircraft, platforms, or other man-made structures at sea, operating for the purpose of disposal of such matter or derived from the treatment of such wastes or other matter on such vessels, aircraft, platforms or structures. Based on this definition, the LDC is generally applied to discharges of waste and garbage loaded onto the ship from land-based sources and has not been applied to ship-generated garbage. A broader interpretation of its provisions to include ship-generated garbage would significantly contribute to mitigation of marine debris. Such a broad interpretation could be achieved by simply limiting the definition of the term •normal operations" under the LDC to the actual mechanical operation of the vessel itself, excluding activities that occur on board, such as the generation of crew-related garbage and discharge of fishing nets. Such an interpretation would appear to be consistent with the purpose and the spirit of the LDC to prevent pollution of the marine environment from dumping. R e l a t i o n s h i p o f L D C and M A R P O L It has been suggested that both MARPOL and the LDC cannot simultaneously apply to the disposal of plastic materials because Article 2(3)(b)(i) of MARPOL purports to exclude from its jurisdiction discharges which constitute 'dumping' under the London Dumping Convention (Bean, 1984). This view restricts application of the LDC to discharge of waste cargo carried to sea for the purpose of dumping--all other waste discharged at sea would be governed by MARPOL Since Annex V of MARPOL has not entered into force, the LDC is the only binding international agreemere that addresses the issue of plastics and marine debris. Therefore, the international community currenfly must rely on the LDC and domestic legislation to address this problem. Given its primary objective to prevent marine pollution, this author believes the LDC
should be interpreted as broadly as possible in order to achieve its fundamental goals. The potential overlapping jurisdiction of the LDC and MARPOL for discharges of ship-generated plastics and other debris was recognized but not resolved at the 9th Consultative Meeting of the LDC. This meeting adopted a resolution (International Maritime Organization, 1985c) that recognizes a general prohibition on dumping of plastics under the LDC and the competence of MARPOL Annex V in prohibiting discharges from vessels. The resolution also pledged coordination of activities with other competent bodies and urged information dissemination and identification of practicable means to reduce the hazards, The Report of the Ninth Consultative Meeting (International Maritime Organization, 1985c), however, left the jurisdictional issue extremely vague by stating: +'The Meeting felt that the deliberate disposal of shipgenerated persistent plastic and synthetic material, including fishing nets, whether or not such deliberate disposal is co~red by Annex V of MARPOL 73/78 or constitutes dumping under the Convention, is a source of marine pollution which the Convention calls upon all Contracting Parties to control" (Emphasis added). Cooperation is needed to define competency in this area more clearly. As of October 1985, 60 states, including the U.S., have ratified the LDC and are thereby bound by its provisions, whereas only 38 states have ratified MARPOL (International Maritime Organization, 1985d). Further, 35 states that have ratified the LDC have not as yet ratified MARPOL. Those states will not be bound by Annex V even after it enters into force, except to the extent it is considered to constitute customary international law. The larger number of states adhering to the LDC provides an additional argument for pursuing efforts to address the problem in the context of that Convention, if at all possible.
Regional Agreements In addition to global international regimes, regional efforts also address worldwide concerns, as well as those common to a particular region. Several regional agreements specifically recognize problems resulting from marine debris and offer a promising forum to address marine pollution issues. Oslo Convention The Convention for the Prevention of Marine Pollution By Dumping From Ships and Aircraft (1972), popularly known as the Oslo Convention, regulates dumping activities generally in the area of the NorthEast Atlantic, excluding the Baltic and Mediterranean Seas. The Osio Convention prohibits dumping of plastics and other synthetic materials almost identically to the LDC. Article 5 of the Oslo Convention prohibits dumping of all substances listed in Annex I to the Convention. The list includes (in para. 6): "|p]ersistent plastics and other persistent synthetic materials which may float or remain in suspension in the sea, and which may seri363
MarinePollutionBullelin ously interfere with fishing and navigation, reduce amenities, or interfere with other legitimate uses of the sea". In order to tie this prohibition to the plastics problem, the term 'legitimate uses' would have to include use of the ocean as a habitat for living resources. Dumping is defined in Article 19 of the Oslo Convention as follows: "any deliberate disposal of substances and materials into the sea by or from ships or aircraft other than: a. any discharge ineidemal to or derived from the normal operation of ships and aircraft and their equipment; b. the placing of substances and materials for a purpose other than the mere disposal thereof, if not contrary to the aim of this Convention". Hels#~ki Con~ention Another example of a regional agreement that addresses the problem of marine debris is the Convention on the Protection of the Marine Environment of the Baltic Sea Area (1974) (hereinafter the Helsinki Convention). Article 3(1) of the Helsinki Convention generally directs the contracting parties "[tlo take all appropriate legislative, administrative or other relevant measures in order to prevent and abate pollution and to protect and enhance the marine environment of the Baltic Sea Area". Further, Regulation 8,b.l.a.(1) of Annex IV of that convention explicitly prohibits the discharge of "all plastics, including but not limited to synthetic ropes, synthetic fishing nets and plastic garbage bags". As in M A R P O L Annex V, an exception is made to the prohibition for accidental loss of synthetic fishing nets.
Pacific Convention signed in 1981; 5. tile Jeddah Regional Convention for the Conservation of the Red Sea and Gulf of Aden Environment, signed in 1982; and 6. the Wider Caribbean Region Convention signed in 1983. The Conventions contain general obligations of states to undertake appropriate measures to prevent, abate, and combat pollution from a variety of sources. The key to success of the regional seas conventions is the adoption and implementation of protocols on special problems. The basic legal norms reflected in Regional Seas conventions could be translated into practical solutions through the adoption of such protocols. For example, a separate protocol could be devoted entirely to the problem of plastics and marine debris. Alternatively, various aspects of the plastics problem could be addressed in the context of other protocols, such as those relating to land-based sources of marine pollution, vessel-source pollution and dumping. A n example of this approach is contained in the Protocol for the Protection of the Mediterranean Sea Against Pollution from Land-Based Sources, a protocol to the Barcelona Convention which established the Regional Seas Programme for the Mediterranean. Article 5 of the Protocol directs parties to undertake elimination of pollution from substances listed in Annex I to the protocol. That list includes (in pare. 7) "persistent synthetic materials which may float, sink or remain in suspension and which may interfere with any legitimate use of the sea". The parties are further directed to implement, jointly or individually, necessary programmes and measures to achieve this goal, and are directed to develop common emissions standards and standards for use.
UNEP Regional Seas Pmgmnmte The United Nations Environment Programme I m p l e m e n t a t i o n o f L e g a l Norms (UNEP) assists nations in protection of the marine Except for a provision for adequate reception facienvironment through its Regional Seas Programme. Divided into 11 designated regions, more than 120 of lities to receive wastes under Annex V of MARPOL, the world's approximately 130 coastal states are neither global nor regional conventions on marine cooperating to reduce pollution and conserve living pollution provide specific measures to facilitate mitigaresources. States in each region assess the quality of tion of the marine debris problem. It may be necessary their marine and coastal environments, identify sources to institute practical solutions at the international level of environmental degradation, regulate activities actu- to achieve effective implementation and enforcement of ally or potentially causing pollution, manage living the general prohibitions. Continued efforts to provide public information and resources, and preserve rare species and habitats. This is accomplished by compiling 'action plans' that outline education programmes on the problem are a critical areas of cooperation for each region and by adopting first step in eliminating marine debris. Public awareness conventions that provide legal frameworks for the ac- will encourage mitigation efforts. Second, with regard to ship-generated garbage, economically attractive comtivities. U N E P is responsible for 'action plans' in eleven paction and recycling technologies could be employed regional areas, and regional conventions have been on vessels to encourage retention of plastics. Third, the developed in six of these areas. The six conventions are: prevention of lost fishing gear could be facilitated by 1. the Barcelona Convention for the Protection of the developing a system for identifying sites of repeated net Mediteranean Sea against Pollution, signed in 1976, hang-ups and possibly limiting fishing in those areas. entered into force in 1978; 2. the Kuwait Regional Con- Fourth, the adverse effects of lost fishing gear could be vention for Cooperation on the Protection of the mitigated through a system of gear marking or through Marine Environment from Pollution (which covers the gear modifications, such as the development and Gulf area) signed in 1978, entered into force in 1980; 3. required use of biodegradable fishing gear. Fifth, the use the Abidjan Convention for Cooperation in the Protec- of biodegradable packaging could also diminish adverse tion and Development o f the Marine and Coastal Envi- impacts of ship-generated garbage. Sixth, retention end ronmem of the West and Central African Region signed retrieval of plastics could be further encouraged by a in 1981, entered into force in 1984; 4. the South-East system of financial rewards or penalties. Seventh, an 364
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expanded observer network would strengthen enforcement efforts. Finall); efforts could be made to identify areas of ecological sensitivity because of their role in breeding, migration, feeding or other factors, where marine creatures are particularly vulnerable to entanglement. These mitigation measures have been endorsed as possible solutions by the United States (Food and Agriculture Organization, 1985; Colin, 1985). All should be utilized to achieve the broadest application of the legal norms set out above. In addition, efforts must continue to educate the public and to better understand the nature and extent of the problem through scientific research. Coordination of action among these mitigative approaches is required to provide a safe environment for the precious living resources of the sea.
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