Plastic Garbage in the Sea—What Solutions Does the Law Offer?

Johannes Fuchs, Christian Albrechts Universität zu Kiel, 2012

The objective and task of international law of the sea is to ensure the sustainable use of the oceans that will preserve the marine ecosystem for future generations. Plastic garbage, which can drift around the oceans for centuries, provides a major challenge. The United Nations Law of the Sea Convention, which has been ratified by 162 states, outlines responsibilities with regard to environmental protection. In view of the continuing littering of the sea, however, the success of this legislation is questionable—do we perhaps need a new, different kind of legislation?

The Use of the Seas and the “Tragedy of the Commons”
Those who use the sea to dispose of their garbage do not have to bear the immediate consequences of this behavior, as the garbage is distributed throughout the high seas and along foreign coastlines. Other states or the community of states use these areas in common, and thus others suffer the long-term damage caused by pollution. Ecologist Garrett Hardin already summarized phenomena of this kind in 1968 under the term “tragedy of the commons.” Through recurring, self-interested behavior, a number of protagonists cause an environmental problem that, in its ultimate dimensions, can no longer be attributed to a single actor. Can the law reverse this mechanism?

Pollution by Shipping—A Problem Solved?
The legal situation with regard to shipping is a highly differentiated one. Dumping plastic garbage in the sea is often regulated parallel to the problem of oil pollution—although in direct comparison fewer states accept the prohibitions relating to garbage.
According to the Law of the Sea Convention all states must regulate the deliberate disposal of waste as well as other forms of pollution of the marine environment by ships—whether in their national waters or by their ships flying under their flag. There is no absolute ban, only an obligation to control and reduce the amount. Further international standards are established by multilateral and regional instruments. MARPOL, the International Convention for the Prevention of Pollution from Ships, alone has 140 contracting states. Annex V explicitly forbids the dumping of plastic garbage while at sea. At the same time countries with ports are obliged to provide facilities for the disposal of garbage. Other agreements, such as the London Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter from 1972, provide additional impetus, and the responsibilities in the law of the sea convention, which were originally very broadly defined, are becoming increasingly more concrete.
Deficits still exist as regards a wider-reaching ratification of the instruments—particularly by flag states. There is still clear room for improvement, as well as with respect to practical implementation. For example, the question over which state must ultimately deal with the waste from ships and meet the ensuing costs has not been conclusively clarified.

Pollution from the Land—Uniform Solutions to a Complex Problem?
Compared with the problem caused by shipping, the pollution of the seas from land sources is considerably more complex and produces more debris in the oceans. The sources are numerous and can hardly be regulated uniformly: weather conditions, unfiltered wastewater, deficiencies in waste management. The thoughtless disposal of waste in the sea by coastal residents and tourists also contributes to the problem.
The Law of the Sea Convention is the only global contract that addresses pollution of the seas from land sources. Again, there is a specific obligation to prevent, reduce, and control environmental pollution. In comparison to the regulations affecting shipping, the text of the convention contains an important restriction: the requirements for developing countries are considerably less strict. In addition, international standards are not binding but should merely be taken into account.
Regional conventions, for the Mediterranean for instance, target cooperative implementation, such as the establishment of shared responsibilities and plans to reduce the quantity of garbage. Outside the European Union the successful implementation of such conventions is limited—the necessary administrative capacity is often lacking. In a more extreme way this also applies to emerging and developing countries, where garbage is rarely disposed of properly, or wastewater filtered.
Nevertheless, this does not necessarily mean that we need new legislation. More important is the transfer of knowledge and technologies to allow existing responsibilities to be met. Here the industrialized nations are called upon to utilize the existing cooperation frameworks!

Involving Civil Society
Plastic garbage in the sea is a global problem with local causes. Abstract contract law can hardly balance out the very different social and economic conditions in the various countries, and it is difficult to arrive at a consensus about general responsibilities. At the same time the view should not be restricted to measures by the states at an international level. Ultimately, local measures also play a decisive role, above all the involvement of the local populace, whether by reducing the use of plastic or by regular cleanups of debris in coastal regions. Without a change in consumer behavior, the increasing littering of the seas will be difficult to stop.

Johannes Fuchs, born in 1983 in Düren, Germany, studied law at Bayreuth University and at the University of Bonn, focusing in particular on German and international environmental and infrastructure law. After having worked in the areas of international environmental and public law, he is currently researching and teaching at the Chair of the Law of the Sea, Institute for International Law, Christian Albrechts University of Kiel.

Photo: © Photostudio Balsereit/Köln