Essay On The Great Pacific Garbage Patch: International Legal Framework And Solution Options

International Legal Framework for Marine Litter

Write an essay on the Great pacific garbage patch. 

As has been found, marine litter originates predominately from land-based sources. Whilst having an effective regulatory regime in the management of ocean-based sources of pollution in the form of London Convention, MARPOL and the Law of Seas conventions is essential in dealing with part of the problem, this does not provide an effective regime for land-based sources of marine litter. Plastic garbage often influences the maritime environment of single state or group of nation. Since the ocean currents and wind transport plastic garbage over long distances, the areas that are mostly affected by such litter usually do not have sufficient control over the disposal or production of the litter.

It is a well-known fact that sources of plastic waste are spread across the world and in the absence of a uniform international legal structure, the efforts to restrain plastic production or disposal in one area  is often weakened by the ‘leakage’ of the sources to a free area. Although the above-mentioned legal instruments are potentially helpful, collectively, their deficiencies retrain their capacity to reduce plastic marine garbage. In this part, the efficacy of the international frameworks that have been enacted to reduce marine litter shall be discussed in details along with the shortcomings in reducing chief sources of plastic pollution. In the absence of enforceable standards, it can be said that the existing agreements are not competent to address the issues related to plastic marine litter. The essay shall conclude by highlighting number of solution options that might be effective if incorporated within the legal framework to reduce the occurrence of marine litter. 

The London Convention and Protocol regulates the dumping of wastes or any other matter with respect to the sea. The London Convention is known to be one of the first global conventions that was introduced to defend the marine environment against the human activities and came into effect since 1975. On the other hand, MARPOL Annex V regulates the prevention of pollution in sea that is caused by disposal of garbage into the sea. The amendments made to Annex V of the MARPOL were made in 2011 prohibited the discharge of garbage except under specific permission stipulated under regulations of MARPOL Annex V. The dumping of all garbage into the sea from the ship includes all types of domestic wastes, food wastes and operational wastes, cargo residues, incinerator ashes, shipboard treatment of garbage, animal carcasses, and cargo residues, cleaning additives or agents.

Effectiveness of Existing Legal Frameworks

The London Convention was designed to provide the fundamental framework for international control of the premeditated disposal of all litters into the ocean. The London Convention usually prevents nations from depositing litters at sea, particularly those that have been generated on land. The Convention prohibits any intentional disposal of wastes or other matters into the sea from aircraft, vessels, stand or other manufactured materials in sea.  The restriction is achieved by using a permitting system, which requires a signatory state to obtain permission for loading within its territory or for dumping of waste by ships in the high sea under its flag.

One of the most significant sources of marine pollution is land-based activities that have been estimated to be the reason for causing 80 percent marine pollution. Land-based pollution into the sea has become a significant global concern owing to the possible trans-boundary impact of such pollution in the sea. In the context of the legal framework addressing marine pollution, UNCLOS is considered as one of the most intricate and significant multilateral treaties that have been established in respect of law of the sea.  Part XII of the UNCLOS sets out provisions regarding the preservation and protection of the marine environment on a local, global and regional basis. As per Article [207, para 1] of the Convention further promotes  that States shall adopt regulations and laws in order to reduce, control and prevent pollution of the marine environment that arises mainly from land-based sources. The use of the term ‘shall’ indicates that the provision imposes a legal obligation upon the states to undertake reasonable measures to ensure that marine pollution is reduced, controlled and prevented effectively as was held in Philippine v China Case.

Majority of wastes entering into the ocean begins on land, thus, the issues related to marine litter is closely associated with the effectiveness of the national policies on waste minimization. It further depends on the efficacy in the reduction, prevention, and management of marine litter that is incorporated in solid waste management services for municipal/industrial solid waste as well as wastes generated from the frivolous and commercial marine activities. Eventually, the efficacy in preventing and reducing the marine pollution depends on the level of response and contribution of the stakeholders towards the implementation of the legal instruments such as retailers, plastic industry and consumers.

In the general context, international instruments that addresses marine litter  may be divided into two groups, hard law and soft law. Soft law refers to the non-binding provision between parties, for instance, the Global Program of Action for the Protection of the Marine Environment from land-based activities. The Soft law agreements generally include provincial planned action plans, resolutions and declarations that are adopted by international institutions and inter-governmental organizations. On the contrary, hard law defines legally binding contracts as contracts that stipulates compulsory requirements. An example of hard law includes conventions such as UNCLOS, which includes compulsory requirements with respect to reduction and replacement of marine litters. 

Solution Options to Reduce Occurrence of Marine Litter

Hard law agreements are applicable to a particular jurisdictional area and land area of maritime environment that are usually determined by the parties to such agreement. Hard law agreements are often referred to as a protocol that endows the parties to such agreements with detailed information with respect to the legal standards that the parties are obligated to fulfill. Protocols may deal with topics such as incorporated coastal zone management, emergency plans and directive of land-based activities. Since protocols have a legal binding effect, it may take several years to negotiate if any alteration is required regarding the legal provisions set out in the Protocol.

Now, in the context of maritime litter falling under an existing protocol, the existing protocol shall serve as a legally binding foundation for the expansion of new action plans in order to deal with issues like assessment of marine garbage and strategic monitoring. Existing protocols may also support several annexes that endow with additional details regarding factors like criteria to establish, permitting and addressing priority pollutants as well as the manner in which protocol is applied to a particular pollution source. Unfortunately, several hard law protocols and agreements are neither enforced nor implemented effectively. Moreover, although the annexes to the protocols may have a legal binding effect upon the parties to the agreement, the parties are often provided with options to choose and pick the annexes that such parties would like to sign. The shortcomings present within the existing three treaties that is, UNCLOS, MARPOL and London Dumping Convention includes lack of enforceable standards, insufficient enforcements mechanism and restricted jurisdiction over the major sources of plastic pollution.

The UNCLOS is the only universal treaty that particularly deals with land-based sources or marine litter. However, the legal instrument usually has been proved ineffective in reducing or preventing marine litter in the Pacific mainly because of two solutions. Firstly, the Pacific Garbage Patch goes beyond, national water sovereignty established in the treaty, and the provisions of the treaty related to marine litter are ambiguous to facilitate a comprehensive solution. Generally, UNCLOS has established boundaries in the world’s ocean, which gives nations with political sovereignty over the waters within twelve miles of their shorelines. Up to 200 miles from their shores, party nations have jurisdictions to preserve and safeguard their marine environments. The marine sovereignty boundaries coagulate the tragedy of the common problems with respect to the Pacific Garbage Patch. Nevertheless, the patch is far way from  any coast for a nation to apply the 200-mile environmental security authority in order to implement a national law within this area. The issues related to the designation and identification of Particularly Sensitive Sea Areas [PSSAs] has become a significant problem.

Secondly, UNCLOS is not sufficiently a controlling instrument that can be used to contest against the Pacific Garbage Patch, as it is essentially ineffective legal framework for safeguarding the maritime environment. The provisions of this legal instrument do not have the binding effect that is required to reduce the present level of land-based marine litters in the ocean. According to Article [207] of the legal instrument, signatory states are required to adopt regulations and laws to reduce, control and prevent pollution of the nautical environment from land-based sources, which includes pipelines, estuaries and outfall structures. The only further guidance that has been provided by the UNCLOS is the regulations, measures, standards, rules, laws and recommended practices that have been designed to reduce the release of harmful, noxious or toxic substance into the marine environment to the extent possible. 

It can be stated here that though UNCLOS had set creditable objectives for the nations that are signatory to the agreement but it failed to develop any particular species to accomplish the goals  and neither prompted effective legislation in this context. Further, the deficiency present in this legal instrument with respect to the control of land-based pollution of the sea as set out under Article [207] and [213]  of the instrument provides a wide discretionary power to adopt weaker, stricter, regional or national provisions.

The other two existing international legal instruments significantly neglect land-based causes of plastics that are estimated to be accountable for causing maximum marine litter. For instance, the London Dumping Convention, which though was enacted to deal with land-based sources, that caused marine garbage, but such provisions are significantly lacks binding effect or had limited scope.

Similarly, in regards to Annex V of MARPOL, that broadly prohibit the emancipation of garbage or plastics into sea, it excludes disposal of plastic or accidental loss that has resulted from damage caused to ship. The instrument has exempted naval auxiliary, warships, crewmembers and navy ships from any penalty for discharging waste without any form of restriction. Further, several parties to the MARPOL have not yet ratified Annex V of MARPOL.

Additionally, even if the present international treaty includes a clear legal standard, jurisdictional restrictions may restrain enforcement. Sometimes the treaties approve coastal states to reprimand foreign-registered vessels that travel in the territorial waters but still their powers are restricted. For instance, under MARPOL, coastal states may respond to alleged infringements in their territorial waters by demanding information from the suspect vessel or physically inspect a vessel if it considers such vessel to pose a significant threat.

The second significant shortcoming existing in the legal instruments is the lack of enforceable standards. For instance, UNCLOS stipulated provision that require nation “shall endeavor to use the best practical means to reduce marine pollution in accordance with their capabilities”. It is difficult to define and enforce the phrase “best practical means” or even “all possible measures” and this requirement varies from one country to another with different legal systems, capacities and environmental circumstances.

Lastly, the penalties imposed under existing international marine pollution treaties are not sufficient to deter such illegal behavior. For instance, MARPOL does not impose any particular penalties for violations rather the instrument requires each signatory to establish its own penalty structure through domestic enabling legislation. The individual state parties that have constructed MARPOL penalty schemes are usually not adequate and effective to deter or punish violators. Moreover, the difficulty of recognizing and recognizing ocean-based sources of illegal discarding further makes implementation more intricate.  In the absence of tracking systems, it is very intricate to connect disposal of waste into a particular ship. 

From the above discussion, it can be inferred that there is not one but three different and separate international agreements that are in force, at present, which governs the disposal of garbage in the oceans. However, none of the legal instruments has been effective in preventing or reducing the disposal of garbage or plastics into the sea such as the Great Pacific Garbage Patch. This is because the conventions emphasizes more on the disposal of garbage at sea and gives a wide discretionary power to the state parties to implement the provisions of such treaties. Although one of the objectives of the conventions is to prevent or reduce disposal of garbage that are created using land-based sources and activities, the Conventions have not addressed the other sources such as runoff during storms that forms significant sources of pollutions. The runoffs during the storms include debris that are washed into marine and coastal waters which are not addressed by the legal instruments that were enacted to exercise control over disposal of garbage into sea. Under such circumstances, it is imperative to prevent plastic marine litter for which the following measures may be taken into account.

Small amendments or modifications within the existing legal framework may help in filling up the lacunae that is prevailing within the legal instruments and have become apparent in past several years through monitoring. The signatories to MARPOL must modify the current size of the vessel and restrict the limitations in Annex V with respect to garbage management plans, placards, garbage record keeping ensuring that lesser vessels are exempted from being subjected to penalty due to disposal of garbage into the sea. In regards to the provision under section [207] and [213] of UNCLOS which requires state parties to enforce their laws and regulations regarding land-based sources surrounding marine pollution, additional measures must be implemented.

The additional measures to enforce applicable international standards and rules must be established through competent international organizations or diplomatic conferences for reducing, controlling or preventing marine pollution caused by land-based sources. Similarly, the London Dumping Convention must also be amended for incorporating provisions that safeguard or prevent unintentional disposal and extend protection of member states and internal waters. Such changes made within the international agreements must be approved and then enforced by the parties to such agreement.

Plastic litter in the oceans may cause significant harm to the environment and the creatures inhabiting this planet. Despite several domestic and international law in place, the problems related to marine pollution persists. Though it cannot be denied that the existing legal framework has to a certain extent, assisted in reducing the plastic load entering into the ocean, but it has not been able to control or reduce the primary sources causing marine pollution. Therefore, it is imperative to deal with waste disposal and other primary sources that causes marine pollution to be dealt with at local, national as well as at international levels. In addition to the above recommendations that could assist in filling the gaps present within the three fundamental legal frameworks, introduction of better run-off methods at the landfills shall bring about necessary positive changes in preventing or reducing marine pollution like that of Great Pacific Disposal Patch. 

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