Wasting our future by wasting the Sea: How to combat marine pollution from land-based sources on international and regional level

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Department of Law Spring Term 2020

Master’s Thesis in International Environmental Law 30 ECTS

Wasting our future by wasting the sea

- How to combat marine pollution from land-based sources on international and regional level

Author: Lovisa Norine Fransson

Supervisor: Lecturer Maria Forsberg

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Acknowledgements

I believe that everyone has a personal relationship with the Ocean. For me, it started at the early age of 9 months when I was at Skrea Strand in Falkenberg, the south of Sweden, and decided to take my very first steps on the beach. Thereafter, as a typical person from Gothenburg, I started to work at the Ferry Company “Stena Line” a year after high-school, and so I came to spend my four coming summers at Sea. I really loved being at Sea and I think that I am not alone to say that the Sea can give an irreplaceable sense of calmness and infinitude. Due to my interest and personal relationship with the ocean, I took a class in “Law of the Sea” during my exchange semester at University of Western Australia in fall 2018. It hurt me to learn how critically endangered the marine environment is, and yet how little focus that is given to the marine environment in international law. This class was one of the factors that led me to spend the fall 2019 as a trainee at the Foreign Min- istry of Affairs in Sweden, working with UN’s Sustainable Development Goal (SDG) 14 that is to conserve and sustainable use the Ocean. At the Ministry, it became apparent for me that I was going to finish of my five years of law studies by conducting my master’s thesis in Environmental Law of the Sea, and how this can serve to achieve SDG 14. Be- cause if it something that I am willing to wholeheartedly fight for, it is the feeling of infinitude and peace that the Ocean gives. In fact, if sufficient measures are not taken within short, that feeling of infinitude will be hard to find elsewhere since the critical environmental state will not allow us to feel such calmness or timelessness.

I thank my teacher Alexander Philipp Kastner at University of Western Australia for inspiring me to learn about the Law of the Sea. Your passion for the topic really positively spilled over. I thank my supervisor at the Ministry, Helen Ågren, current Ocean Ambas- sador of Sweden, for teaching me so much about Sweden’s governmental Ocean policies and international initiatives to combat marine degradation. I also send a huge thank you to Maria Forsberg, my supervisor at Uppsala University, for reading through this thesis so thoroughly and carefully. It was a pleasure to have you as my teacher both my first law semester, as well as my last. My gratitude also goes to Daniel, Mathilda, Louise, Melanye and Alessandro who looked through this thesis prior to deadline, thank you guys! Also, mom, thank you for believing in me and always encouraging me in my studies.

Lovisa,

Gunnilse, April 2020

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Abstract

In the United Nations Convention on the Law of the Sea, the environmental protection of the marine environment was first addressed in a comprehensive manner on an international level. However, the Convention distinguishes between four different sorts of pollution depending on which source the pollution originates from. Still, one of these sources play a more crucial role in the protection of the marine environment than the other since that source is estimated to stand for 80 percent of all the marine pollution; namely marine pollution from land-based sources. As the throw-away culture has led to products being disposed of at a faster rate than ever before, in particular plastic products, the amount of land-based debris has also substantially increased over the last decades. This increased disposal rate of products in combination with poor waste treatment has consequently led to many kinds of wastes ending up in the ocean and causing severe harm, not only to the marine environment and its living species, but also to humans that eat the fish and use the many other ecosystem services of the Sea.

In this thesis, some prominent international conventions on marine pollution from land-based sources are examined; namely the United Nations Convention on the Law of the Sea, the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal, as well as the Stockholm Convention on Persistent Organic Pollutants. To achieve United Nations Sustainable Development Goal number 14.1 to significantly reduce marine pollution from land-based sources by 2025, this thesis claims that international laws addressing this sort of pollution need to be implemented. Moreo- ver, this thesis rests on the belief that regional implementation is a crucial component in making states align with international law. However, while regional implementation has been ambitious in the European Union Law, many regions still lack enforceable frameworks that aim to reduce and prevent marine pollution from land-based sources.

Keywords: Marine pollution from land-based sources; United Nation Convention on the Law of the Sea; the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal; Basel Ban Amendment; the Stockholm Convention on Persistent Organic Pollutants; international waste trade; environmentally sound management of wastes; marine plastic debris; international environmental law of the sea;

transboundary marine pollution; UN Sustainable Development Goal 14.1; Agenda 2030.

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Table of Content

1 Introduction ... 11

Background to Marine Pollution from land-based sources ... 11

Purpose and Scope ... 13

Method ... 14

Westerlund’s Environmental Law Methodology ... 14

The International Law Methodology ... 15

The EU Law Methodology ... 16

Intercorrelation and application of methodology ... 17

Terminologies ... 17

Limitations ... 18

Disposition ... 19

2 The Contexts of Marine Pollution from Land-Based Sources ... 20

The history of regulating land-based marine pollution... 20

The environmental effects of plastic waste and its management ... 22

The rise of plastic in modern society and its environmental features ... 22

Poor Waste Management and Environmental Injustice ... 23

The different legal zones of the seas ... 24

3 International binding law on Marine Pollution from Land-Based Sources ... 26

United Nations Convention of Law of the Sea; UNCLOS ... 26

Background ... 26

States duty to adopt laws to combat land-based Pollution ... 27

Special needs of developing countries ... 28

Enforcement of states duty to regulate land-based pollution ... 29

The Basel Convention: Transboundary Movements of Wastes... 32

Background to the Convention ... 32

The covered substances ... 33

The core elements of the Basel Convention ... 33

The recycle exception; a risk to the marine environment? ... 35

The Liability and Compensation Protocol ... 36

The Ban Amendment; a possible way to minimise MPLBS? ... 38

The Stockholm Convention... 41

Background and its relevance for marine pollution ... 41

Special assistance for developing countries ... 41

Possibility to present reservations and additional POPs ... 42

Enforcement and compliance ... 43

3.3.4.1 Reporting system and its suitability for international environmental law issues ... 43

3.3.4.2 Evaluation and measures against non-compliant states ... 44

Summary and some brief conclusions ... 44

4 Non-binding international frameworks on Marine Pollution from Land-Based Sources ... 47

The Global Programme of Action ... 47

Background ... 47

The main characteristics of the GPOA ... 47

The effects of the GPOA ... 48

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The Honolulu Strategy ... 49

Summary and some brief conclusions ... 51

5 Regional frameworks on Marine Pollution from Land-Based Sources ... 53

EU Directives on solid waste management ... 53

The Framework Waste Directive ... 53

5.1.1.1 Broad definition of waste to protect the environment ... 53

5.1.1.2 Producers responsibility ... 55

5.1.1.3 The EU’s integrated waste network ... 55

5.1.1.4 Amendments to raise the environmental ambition ... 56

The Landfill Directive ... 57

Summary and some brief conclusions ... 58

EU specific measures on plastic ... 59

Strategy for plastic in a circular economy ... 59

Directive on the reduction of the impacts of certain plastic products... 60

Summary and some brief conclusions ... 61

Regional implementation of the Basel Convention ... 61

The incorporation of the Basel Convention into EU law ... 62

5.3.1.1 Shipments within the EU... 63

5.3.1.2 Shipments from the EU to third countries ... 64

The Bamako Convention; a way to protect the marine environment? ... 65

Summary and some brief conclusions about global waste trade ... 67

Regions without effective laws ... 68

Different ambitions in different regions ... 68

Means to enforce action ... 69

6 Conclusions ... 73

References ... 76

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List of abbreviations

ARSIWA Responsibility of States for International Wrongful Acts COP Conference of the Parties

CJEU Court of Justice of the European Union ECHR European Convention on Human Rights ECtHR European Court of Human Rights EIA Environmental Impact Assessment ESM Environmentally Sound Management

EVOA EU Regulation (EC) No. 1013/2006 on the shipment of wastes

EU European Union

FDW (European) Framework Directive on Waste.

GHG Greenhouse gas

GNI Gross National Income ICJ International Court of Justice ILC International Law Commission

ITLOS International Tribunal of Law of the Sea IPCC Intergovernmental Panel on Climate Change MPLBS Marine Pollution from Land-based Sources PIC Prior Informed Consent

POP Persistent Organic Pollutants SDG Sustainable Development Goal TEU Treaty on European Union

TFEU Treaty on the Functioning of the European Union UNEP United Nations Environment Programme

UNFCCC United Nations Framework Convention on Climate Change UNCLOS United Nations Law of the Sea Convention

WTO World Trade Organization

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1 Introduction

Background to Marine Pollution from land-based sources

Not only is the marine ecosystem a source to food, tourism and transportation, but the ocean is also estimated to very likely have taken up between 20-30 percent of the Co2 emissions from anthropological sources since the 1980s. Moreover, it is virtually certain that the global ocean has warmed unabated since 1970 and has taken up more than 90 percent of the excess heat in the climate system. In other words, if it was not for the ocean we would have a planet with a severely higher temperature than today, most likely unliv- able for humans and many other species.¹ Still, despite what the ocean provides us, humans continue to treat the ocean as a global waste station. In fact, a substantial amount of all the land-based sources of marine debris originates from landfills that are located either in coastal areas or close to rivers.² Therefore, the wide-scale of poor waste management is one of the most detrimental threats to marine life and needs to be urgently addressed.³

About 80 percent of all the marine pollution is estimated to come from land-based sources, whereas the rest of the amount comes from other pollutant sources at sea such as from vessels.⁴ Of these 80 percent of marine pollution from land-based sources (MPLBS), 60 to 80 percent are estimated to consist of plastic.⁵ In fact, it is estimated that more than eight million tons of plastic annually enters the ocean.⁶ Compared to the 1980s, the amount of plastic in the ocean has increased tenfold.⁷ Meanwhile, due to the emerging prosperity in low-income countries, it is inevitable that the consumption of plastic will continue to rise yearly for a while. Hence, despite the already harmful levels of marine plastic debris, the world has most likely not yet reached its peak-production of plastic.⁸ Furthermore, it has been contended that it is the sea we must turn to if we are to find the

1 United Nations Intergovernmental Panel on Climate Change, The Special Report on the Ocean and Cry- osphere in a Changing Climate (SROCC), Summary for policy makers (2019), p. 9. [online]

2 Puthucherril, “Protecting the marine environment: Understanding the role of International Environmen- tal Law and Policy”, (Journal of the Indian Law Institute, Vol 57, No 1, January-March 2015) p. 51.

3 Leous & Neal, “Who is responsible for the marine debris?” (Journal of International Affairs, Vol 59, No 1, The Politics of the Sea: Regulating Stateless Space, 2005), p. 257.

4 Yoshifumi, ”The international law of the sea” (Cambridge University Press, 2^nd ed. 2015), pp. 267-268.

5 United Nations General Assembly, “Preparatory process of the 2020 United Nations Conference to sup- port the Implementation of Sustainable Development Goal 14: Conserve and sustainably use the ocean, seas and marine resources for sustainable development”, 74^th session Items 19 and 74 (a), p. 3.

6 UN Ocean Conference, UN Special Envoy for the Ocean Ambassador Thomson [online].

7 United Nations General Assembly, above. n 5.

8 UNEP, “Marine plastic debris and microplastics – Global lessons and research to inspire action and guide policy change”, (Nairobi, 2016,) pp. 26-28.

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resources to feed the rapidly increasing population in the world with, which also makes a healthy marine environment a necessity for human life.⁹

In order to achieve a sustainable global future economically, socially as well as environmentally, the international community adopted the 2030 Agenda for Sustainable De- velopment in 2015 (Agenda 2030).¹⁰ The 2030 Agenda consist of 17 different Sustainable Development Goals (SDG’s) in which SDG 14 focuses on the conservation and sustainable use of the ocean.¹¹ SDG 14.1 reaffirms the importance of preventing and reducing all forms of marine pollution, in particular MPLBS, including marine debris and nutrient pollution. Whereas many of the 17 SDG’s run out in 2030, there are some SDG’s that are to be achieved within a shorter timeframe. SDG 14.1, which focuses on achieving a significant reduction of all kinds of marine pollution and, in particular, from land-based sources expires already in 2025, only five years from now.¹² While SDG 14 stresses the importance of reducing marine litter and the majority of the world’s countries have signed the resolution, the SDG itself does not stake out a concrete path forward to achieve this goal. It should instead be seen as a document where states highlight and acknowledge the severe threat that marine pollution poses to the environment. Therefore, while SDG 14 has potential to work as an important guideline for political priorities it falls short in pre- scribing what concrete actions that states need to take in order to achieve this goal.¹³

In 2019, UN’s Secretary General claimed that current efforts are insufficient to reach SDG 14.¹⁴ It is therefore crucial that more measures are taken in the pursuit of SDG 14, among which law can play a determinant role. In fact, SDG 14.C prescribes that states shall implement and enforce international sea law as reflected in the United Nations Con- vention on the Law of the Sea (UNCLOS).¹⁵ However, since the provisions on MPLBS in UNCLOS are quite generally held and open to interpretation on how to be applied by states, more specific laws on MPLBS need to be implemented and enforced.¹⁶

9 Cremean & Techera, Marine Pollution Law from: Routledge handbook on international environmental law (2012), p. 277.

10 United Nations, transforming our world: the 2030 Agenda for Sustainable Development, A/RES/70/1, Resolution adopted by the General Assembly on 25 September 2015 (henceforth “The 2030 Agenda”).

11 The 2030 Agenda, SDG 14.

12 The 2030 Agenda, Goal 14.1.

13 The 2030 Agenda, Preamble.

14 Report of the Secretary-General, Special edition: progress towards the Sustainable Development Goals, E/2019/68 (8 May 2019), p. 3.

15 Convention on the Law of the Sea, opened for signature 10 December 1982, 1833 UNTS 397 (entered into force 1 November 1994) ‘United Nations Convention on Law of the Sea’ (henceforth UNCLOS).

16Boyle “Marine Pollution under the Law of the Sea Convention” (The American Journal of International Law, Vol. 79. No 2, April 1985, Cambridge University Press), pp. 353-354.

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Another issue with UNCLOS regulation of MPLBS is the principle of state sovereignty.

Since land-based pollution exclusively occurs within states’ territorial or internal waters, these states can always exercise their right to sovereignty for activities within their own territory.¹⁷ Nonetheless, as marine pollution due to ocean currents can travel rapidly from one state’s sovereign waters to another’s and cause environmental harm there, the justification of the principle of State sovereignty in marine environmental matters can arguably be subject to further scrutiny and discussion.¹⁸

Purpose and Scope

The purpose of this thesis is to identify existing international frameworks on MPLBS and analyse how they can better serve to achieve SDG 14.1, which is to significantly reduce marine litter from land-based sources by 2025. Regional frameworks will also be brought up to illustrate how international law has been implemented in different regions, and to give some perspective on what role international law have when it comes to regional implementation. Although SDG 14.1 covers all forms of marine pollution, this thesis will be limited to concern marine pollution in the form of debris from land.¹⁹

Throughout this thesis, eco-friendly waste management will be examined as a crucial component in achieving an ocean free from land-based debris. Therefore, different environmentally sound waste management methods such as waste disposal close to its source of generation, waste hierarchy and circular economy will be closer looked into and analysed what regards their implications for reaching SDG 14.1. In particular, plastic will be used as an example of land-based litter as it represents the majority of all the MPLBS.²⁰ Moreover, the principle of State sovereignty for MPLBS will be discussed in regard to its justification in a time when it is known that pollution spread beyond national territory and the world is declared to face a climate and environment emergency.²¹

The concept of climate injustice will also be discussed with regard to the international waste trade, which often take place from a high-income country to a low-income country,

17 UNCLOS, article 2-3 & 8.

18 See Leous & Neal, above n 3, p. 260.

19 Agenda 2030, SDG 14.1.

20 United Nations General Assembly, above. n 5.

21 European Parliament resolution on the climate and environment emergency (2019/2930(RSP)).

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where the waste risk to be poorly disposed of and dumped in the Sea.²² Therefore, the questions that this thesis aims to answer are;

1. Which International Conventions and non-binding international frameworks can be identified in the field of MPLBS and how can these serve to better achieve UN’s Sustainability Goal 14.1?

2. What role do regional legislative acts play in implementing international law on MPLBS and to achieve SDG 14.1?

3. Should developing countries be subject to lower environmental standards regarding the regulation of MPLBS on behalf of their economic development, or should these countries be subject to a uniform global standard?

Method

Westerlund’s Environmental Law Methodology

The environmental law methodology was developed by the Swedish researcher Staffan Westerlund. According to this methodology, it is the nature and the ecosystem that shall lay the foundation for the constructions and evaluations of laws, and not the other way around. In general, this requires that the researcher gathers and possesses science-based information about the nature prior to assessing the environmental laws and their efficiency towards reaching environmental aims.²³ For instance, the environmental law methodology would suggest the laws about MPLBS to be formulated on the scientific basis that marine debris in coastal areas move with ocean currents to other marine areas. There- fore, the fact that current international law gives the coastal state exclusive jurisdiction over marine pollution on its territorial sea could arguably be described as a failure to apply an environmental law methodology, as this pollution affects other states as well.²⁴

This methodological approach rests on the theoretical framework that humans are dependent on the environment and its ecological processes and functionalities. Thus, the environmental law methodology holds that ecological sustainability is a pre-condition for social as well as economical sustainability in the long term, as the later cannot be achieved without the former.²⁵ Westerlund argued that the whole environmental legal system has to be reformed in order for the international community to reach the global climate goals

22 Puthucherril, Two decades of the Basel Convention from: Routledge Handbook of International Envi- ronmental law (2012), pp. 295-296.

23 Westerlund, “Fundamentals of Environmental Law Methodology” (Uppsala University, 2007), p. 511.

24 UNCLOS, Article 2–3.

25 Westerlund, ”miljörättsliga grundfrågor 2.0” (Åmyra Förlag, 2003), p. 33.

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and to tackle the ‘future’ environmental emergency.²⁶ Additionally, he claimed that research-studies in environmental law no longer have time to only examine and criticise the existing lack of efficiency in environmental laws. Instead, he argued that legal environmental researchers have to be proactive in constructing new sustainable laws due to the unsustainability of existing laws.²⁷ Such laws must be limited by ecological boundaries in order not to cause exploitation of the nature.²⁸ Furthermore, Westerlund’s method has been widely applied by different scholars and researchers in Sweden and can therefore be described as fundamental for Swedish environmental lawyers.²⁹

This thesis acknowledges Westerlund’s conclusion about the urgent need for a specific environmental methodology. Thereby, this thesis will apply Westerlund’s methodology by assessing scientific facts about marine debris before evaluation the laws on MPLBS.

Also, the efficiency of the international and regional laws on MPLBS that this thesis will evaluate will be based solely on the objective in SDG 14 of achieving conservation and a sustainable use of the ocean. This does not imply that other parameters such as economic and social development goals will be left unconsidered. Rather, this thesis will rest on the presumption that a sustainable environment is a precondition for reaching all the other sustainable development goals.

The International Law Methodology

Since the aim of this thesis is to analyse the SDG 14.1 alignment of current international law on MPLBS, various sources of international law will be looked into such as international conventions, COP-meetings notes, policy frameworks and state practice.

The formally accepted sources of international law are international conventions, internal customs that depict general practices accepted as law and general principles of law recognized by “civilized nations”.³⁰ Decisions from the International Court of Justice (ICJ) can also constitute international law, but only between the parties involved in a

26 While Westerlund addressed the global environmental crisis as a “future emergency”, this scenario is now at hand which was confirmed by the European Parliament in its 2019 resolution on climate and environmental emergency, above n. 21. Thus, this threat is not only future, but also highly present; Wester- lund, above n 23, p. 513.

27 Michaneck & Zetterberg, ”Den svenska miljörätten” (Iustus förlag, Upplaga 4, 2017), p. 33.

28 Westerlund, above n 23, pp. 33-35.

29 For instance this method has been earlier been applied by; Forsberg, “Skogen som livsmiljö” (Uppsala University, 2012); Gipperth, ”miljökvalitetsnormer” (Uppsala University, 1999); Christensen, ”Rätt och kretslopp” (Iustus Förlag, 2000); Christiersson, ”Rättens förhållande till komplexa och dynamiska ekosystem” (Lulea University, 2011); Jóhannsdóttir, ”The significance of the default: A study in environmental law methodology with emphasis on ecological sustainability and international biodiversity law”

(Uppsala University, 2009).

30 The Statute of the International Court of Justice, Article 38 (1) (a-c).

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dispute and under the circumstances for that particular case.³¹ While sources such as un- ratified treaties and reports from the International Law Commission to the General As- sembly are not legally binding on states, they can both serve as evidence of consensus, which can creates grounds for legality and state practice. In fact, the belief that a legal norm is binding, so called Opinio juris sive necessitates, together with state practice char- acterized by uniformity and generality, creates binding international customary law.³²

Unlike domestic law, which is built on national enforcement, international law is rather built upon consent between different states and accepted customs.³³ In other words, despite the lack of strong enforcement and monitoring mechanisms such as international policing, international law exists due to states’ acknowledgements and consensus. In this thesis, the formally accepted sources of international law will be used in order to identify current international environmental standards on MPLBS, whereas international soft law will be used to discuss different doctrines and environmental ambitions among states.

The EU Law Methodology

When assessing the regulations and attempts to combat MPLBS on regional level, a substantial amount of law in this thesis will concern EU law. Even though the nature of the EU is complex, and by its many and peculiar powers, is to be considered as a construction of its own, the EU basically consists of an international organisations based on various agreements between its Member States.³⁴ EU law can be divided into two sources of law;

namely primary and secondary sources. While the primary sources mainly consist of the EU Treaty (TEU), the Treaty on the Functioning of the European Union (TFEU) and the EU Charter of Fundamental Rights (EU Charter), secondary law are laws that are based on these primary sources.³⁵ The primary sources set a mandate for what the secondary law shall consist of, and can be taken in the shape of either a regulation, a directive, a decision or a recommendation. Whereas regulations are entirely binding and directly applicable to all Member States, directives are also binding but leave discretion for member states to choose their own forms and methods for achieving the mandatory results. A decision is binding to the parties it addresses while recommendations lack binding force.³⁶

31 The Statute of the International Court of Justice, Article 38 (1) (d) and 59.

32 Crawford,” Brownlie’s Principles of Public International Law” (Oxford University Press 2012), p 24.

33 Ibid, p. 20

34 Langlet & Mahmoudi, ”EU Environmental Law and Policy” (Oxford University Press, 2016), p. 6.

35 Ibid, p. 15.

36 TFEU, Article 288.

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This thesis will mostly dwell on EU directives, which is a common sort of EU legislation in the field of environmental law since states are able to form the methods of achievement according to their own environmental circumstances.³⁷ When interpreting provisions in EU directives, this will be done according to a contextualized and purpose-oriented interpretation, which is the predominant methodology applied by the Court of Justice of the European Union (CJEU).³⁸

Intercorrelation and application of methodology

Since this thesis will apply three different methodologies, this section aims to explain their intercorrelation and how they will be applied in practice. Firstly, the environmental law methodology will be applied throughout the thesis since the evaluation on how international and regional laws better can align with the environmental objectives set out in SDG 14.1 will be intermittently assessed. The international public law methodology will mostly be applied with regards to chapter three and four on international binding as well as non-binding laws to prevent and reduce MPLBS. When moving on to chapter five in which regional EU frameworks on MPLBS will be brought up, the EU-law methodology will be used simultaneously as the international public law methodology. The reason why these two methods will be applied simultaneously and parallelly is that the EU laws will be evaluated in light of the international public law in the field of MPLBS.

Terminologies

In this thesis, the terminology of developing nations and developed nations, low-income- verses high-income countries as well as OECD-countries and non-OECD countries will often be used. This section will now be used to clarify these terminologies.

According to data from the World Economic Situation and Prospects, organized under UN’s Department of Economic and Social Affairs, countries are classified into three main categories: developing countries, countries in transition and developed countries. These categories are intended to reflect basic economic country conditions, among which the regions for developing countries are Africa, East Asia, South Asia, Western Asia, Latin America and the Caribbean.³⁹ According to the World Trade Organization (WTO) it is up to member states themselves whether they classify themselves as a ‘developing’ or a

37 Langlet & Mahmoudi, above n 34, pp. 16-17.

38 Ibid. p. 17.

39 United Nations Report on World Economic Situation and Prospects (2019) [online].

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‘developed’ state. However, the classification of a developing country brings certain rights such as the right to receive technical assistance when implementing agreements.⁴⁰ Least developed countries is yet another category, which refers to “states that are highly disadvantaged in their development process for structural, historical and also geograph- ical reasons”, where over 75 percent of their population still lives in poverty.⁴¹ In this thesis, the term ‘developed countries’ will occasionally be used synonymously with ‘industrialized countries’.

Low-income and high-income countries are categories of countries classified by their per capita gross national income (GNI) according to thresholds established by the World Bank. Low-income countries are defined as those with less than $ 995 GNI per capita and high-income countries as those countries with a GNI more than $ 12.056 per capita. The World Bank has also created a category for lower-middle-income countries, those with between $ 996 and $ 3,895, and for upper-middle-income countries which refers to states with a GNI between $ 996 and $ 3,895.⁴²

What regards OECD and non-OECD countries, are OECD-countries those countries that are members to the OECD by having ratified the Convention of the OECD, and non- OECD countries therefore consist of countries not having ratified the convention.⁴³ The OECD-countries mostly consists of developed countries, which believe that “the economically more advanced nations should-co-operate in assisting to the best of their ability the countries in process of economic development.”⁴⁴

Limitations

While marine pollution can be divided into four differences sources; vessel-based pollution, land-based pollution, pollution from seabed activities and dumping at sea, this paper will exclusively deal with land-based pollution.⁴⁵ The reason why this paper will limit itself to only consider land-based marine pollution is due to the fact that circa 80 percent of all the marine pollution is estimated to originate from land. If we are to reach a significant reduction of marine pollution, it is crucial that land-based pollution is given particular attention. Moreover, when examining the regional frameworks that exist concerning

40 World Trade Organization, “Who are the developing countries in the WTO?” |online].

41 United Nations Conference on Trade and Development: Least Developed Countries [online].

42 United Nations Report on World Economic Situation and Prospects, above n. 39.

43 Convention on the Organisation for Economic Co-operation and Development (14^th December 1960).

44 Convention on the Organisation for Economic Co-operation and Development, preamble.

45 See Yoshifumi, above n 4 p. 267.

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MPLBS, clearly not all regional frameworks can be examined but the thesis will limit itself to discuss a few. Therefore, the legal acts arising from the EU Circular Economy Package, the EU regulation on shipments of waste and EU specific measures on plastic will be discussed as well as some non-EU regional frameworks. However, non-EU regional frameworks will be touched upon in a more limited extent as they will be scooped together based on their common shared features instead of being brought up individually.

Although all presented frameworks will be assessed with regards to their efficiency towards achieving SDG 14.1 which is to “(…) prevent and significantly reduce marine pollution of all kinds, particularly from land-based activities, including marine debris and nutrient pollution,” the focus will be on marine debris and not nutrient pollution.

Disposition

Firstly, this thesis will in its second chapter on ‘MPLBS in context’ introduce the reader to the problems of MPLBS by explaining how MPLBS emerge and by which contexts it is affected. Thereafter, this thesis will move on to answer the first research-question in chapter three and four, in which international binding versus non-binding laws against MPLBS will be analysed what regards their efficiency to achieve SDG 14.1. In chapter five, research-question two regarding how international laws on MPLBS have been implemented in regional frameworks will be examined, with particular focus on frameworks adopted by the EU. A discussion will also take place concerning what measures can be taken against polluting states that are breaching international law provisions on MPLBS.

Research-question three, regarding developing states’ right to economic development contra their obligation to take legislative measures to reduce MPLBS, will be examined and analysed throughout the thesis, since this question is relevant for all its chapters.

Lastly, chapter six will offer conclusions and suggested amendments in current international and regional laws on MPLBS based on the previous presented material and the aim to achieve SDG 14.1.

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2 The Contexts of Marine Pollution from Land- Based Sources

The history of regulating land-based marine pollution

During the first United Nations Law of the Sea conference in 1958, the issue of marine pollution was addressed internationally for the first time. Nonetheless, the issue at the time mostly considered oil-spills and the focus were therefore put exclusively on vessel- based pollution.⁴⁶ Twelve years later, vessel-based pollution was specifically regulated in the 1972 Convention on the Prevention of the Marine Pollution by Dumping of Wastes and Other Matter (London Convention), which restricted the disposal of wastes from vessels, but also from aircrafts and platforms.⁴⁷ One year later, in 1973, the International Convention for the Prevention of Pollution from Ships (MARPOL) was established. At the time MARPOL mainly focused on regulating oil-disposal spills but eventually, after a revision in 1978, MARPOL came to include a ban against disposal of plastic.⁴⁸ How- ever, MARPOL’s provision on marine plastic debris only covers vessel-based, air-based and platform-based discharges and therefore excludes land-based discharges of plastic.⁴⁹

Since the 1950s, the sort of pollutants that enters the ocean has substantially changed.

From mostly being oil-spills, 80 percent of the marine pollution is today, as previously mentioned, estimated to come from terrestrial sources due to changed anthropological behaviors.⁵⁰ The first time that land-based pollution was directly internationally regulated was in the United Nations Convention on Law of the Sea (UNCLOS) that was signed in 1982 and entered into force in 1994.⁵¹ While UNCLOS has been described to successfully set a mandate for environmental marine protection that previous international agreements lacked, its provision on MPLBS is arguably rather weak.⁵² In fact, when looking at UN- CLOS there is a substantial distinction between the provisions on vessel-based pollution and land-based pollution. Article 211 that regulates vessel-based pollution sets out an absolute responsibility for states to adopt environmental protection laws that “at least

46 Leous & Neal, above n 3, p. 264.

47 Convention on the Prevention of the Marine Pollution by Dumping of Wastes and Other Matter 1972.

48 International Convention for the Prevention of Pollution from Ships 1973 (MARPOL), Annex V.

49 MARPOL only focuses on land-based pollution in regard to state’s proposal for emission control areas, where state’s proposal should include “a description of the control measures taken by the proposing contracting State or contracting States addressing land-based sources […]”, MARPOL, Appendix III, 2 (2) (6).

50 Yoshifumi, above n 4, pp. 267-289.

51 UNCLOS, see full reference above n 15.

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have the same effect as that of generally accepted international rules and standards.”⁵³ In contrast, article 207 regarding land-based pollution takes a different and vaguer approach.

Even though article 207 requires states to adopt laws to combat land-based marine pollu- tion, it proclaims that states are only obliged to “take into account internationally agreed rules, standards and recommended practices and procedures.”⁵⁴ Hence, while UNCLOS sets out international environmental law as a minimum standard for the adoption of national rules on vessel-based pollution, it does not do so for land-based pollution. Instead, member states are given a huge leeway in deciding the ambitions on their national laws.⁵⁵

The reason for the differentiation between the regulation on vessel-based pollution and MPLBS, is because whereas vessel-based pollution occurs on national as well as interna- tional waters, MPLBS occurs only in national waters in which states can exercise their right to sovereignty.⁵⁶ Thereby, UNCLOS has refrained from regulating MPLBS specifically in order not to interfere with state’s sovereign rights and instead adopted more lenient rules on MPLBS. Moreover, according to UNCLOS, the prevention, reduction and control of land-based marine pollution is subject to the economic situation of the con- cerned state.⁵⁷ This formulation in UNCLOS allows very lax national rules about land- based marine pollution in countries with weaker economies. Since these countries usually are dependent on the fishery sector when it comes to food supply but also transport and tourism, lax pollution laws can in fact hit these countries themselves and come with ru- inously consequences for the whole ecosystem.⁵⁸

Given the harmful effects MPLBS has on the marine environment in terms of consti- tuting 80 percent of the total marine pollution, it can arguably seem odd that the MPLBS regulation in UNCLOS is so much weaker compared to vessel-based pollution. Looking at this legislation from an environmentalist lens, it is apparent that UNCLOS should put higher environmental standards for states’ duty to adopt national laws on MPLBS. None- theless, it is not only environmental protection that governs the provisions in UNCLOS, albeit having significant weight, but the principle of State sovereignty also plays a pre- dominantly role.⁵⁹ Therefore, in order for UNCLOS not to interfere in states’ territorial

53 UNCLOS, article 211 (2).

54 UNCLOS, Article 207 (1).

55 Boyle, above n 16, pp. 353-354.

56 UNCLOS, article 2-3, 8 and 207.

58 UNEP, above n 8, p. 55.

59 UNCLOS, Preamble, Article 2-3 and 8.

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waters as well as developing states’ ‘right to development,’ it provides states a big leeway in how to adopt their national laws against MPLBS.⁶⁰

The environmental effects of plastic waste and its management

The rise of plastic in modern society and its environmental features

The change in the sort of marine pollution that has occurred in the last decades, from being mostly oil-discharges to mainly being MPLBS, must be examined in light of the change of production, consumption and waste- patterns that have occurred. For instance, the global plastic production has increased from barely one million ton annually in the 1950s to approximately 300 tons annually in 2013, meaning that the plastic production has increased by 300 times in 60 years. Yet, the production is expected to continue increasing in a business-as-usual scenario.⁶¹ Of this annually produced amount of plastic, the majority ends up as waste instead of being reused or recycled. Thus, poor waste management tends to result into large scale of plastic entering the marine environment.⁶²

It is estimated that more than eight million tons of plastic annually enters the oceans, which is equal to dumping a garbage truck full of plastic per minute.⁶³ The types of plastic entering the oceans are a wide array of different kinds, which affect the marine environment to different extents. Some plastics are produced in a way that makes it degradable by itself in the nature. However, the knowledge of how degraded plastic affects the ocean is limited, but what is known is that conditions such as cold temperature of the sea and lack of sunlight slow down the degradation process even with degradable plastics.⁶⁴ Some sorts of plastic are even estimated to take up to 600 years to dissolve in sea-conditions.⁶⁵

Another big concern is microplastics. Microplastic is a kind of plastic that is maxi- mum a few millimeters in size and that originates mainly from industrial production, cos- metics and degradation of bigger plastic products. They enter into the water system by activities such as washing. There are also microbeads, which constitutes of even smaller sizes of plastic. The complicated part with these sorts of plastic is that they are even harder to clean up than “usual plastic”, which makes them almost an impossibility for ocean- clean-up-projects. Since they are so small, they also enter and infiltrate the whole ocean.

60 Boyle, above n 16, p. 354.

62 World Bank Group, “What a Waste 2.0: A global Snapshot of Solid Waste Management to 2050” (2018), p. 117.

63 United Nations, Factsheet on Marine Pollution from the Our Ocean Conference 2017 [online].

64 UNEP, above n 8, pp. 29-31.

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This makes it highly likely that the microplastics and microbeads which have already entered the oceans are there to stay for centuries to come, and during that time affect the health of marine species and ecosystems. The plastic thereafter affects human health as it ends up in the fish that we are consuming.⁶⁶

Poor Waste Management and Environmental Injustice

Poor waste management usually occurs by the waste being managed by open dumping, open burning or disposal directly into waterways and is common in low-income countries that lack capacity to process the waste. Still, although many low-income countries lack eco-friendly waste management methods, it is common that high-income countries export their waste for disposal in low-income countries due to the low costs for the disposal. For instance, Europe exported as much as one-sixth of its plastic waste, mostly to Asia, in 2017.⁶⁷ This occurs despite as much as 90 percent of the waste disposed of in low-income states is estimated to be openly burned or dumped into the ocean.⁶⁸ Although most of the waste enters the ocean due to poor waste management in developing countries, the most of this waste originates from high-income countries. A scenario of environmental injus- tice is therefore at hand, where high-income countries apply the ‘not on my backyard thinking’ by distributing their waste and environmental responsibility abroad.⁶⁹

In current times, there is a clear gap between the waste generated from low-income and high-income countries. While the annual waste discharge per capita in Central Eu- rope, Northern America and Australia is greater than 1.50 tonnes, the majority of the South East Asian and African countries stand for less than 0.49 tonnes per capita.⁷⁰ Also, the sort of waste that is generated differs depending on the region. Whereas 50 percent of the waste that is generated in low-income countries consists of food and green waste, only 32 percent of the waste in high-income countries consists of organic waste. The remaining waste in high-income countries consists of packaging waste and non-organic waste which is less degradable and more persistent. This is an effect of the so called ‘throw away culture’ where items are thrown away at a higher phase. However, by 2050, the waste generated in low-income countries is expected to increase by three times under a business-

67 World Bank Group, above n 62, p. 117.

68 The World Bank (International Development Association) “What a Waste: An Updated Look into the Future of Solid Waste Management” (2018-09-20), [online].

69 Puthucherril, above n 22, pp. 295-296.

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as-usual-scenario.⁷¹ Therefore, the business of exporting waste from high-income countries to low-income countries will be hard to manage as their domestic waste pressure will increase significantly in the near future.

The different legal zones of the seas

Before going deeper into specific laws of marine pollution, a general overview will be given about some fundamental terminology and concepts that are used in the Law of the Sea. In fact, the ocean is divided into different legal zones in order to determine which state has jurisdiction and sovereignty over particular marine areas. The zones are catego- rized into five different ones; the territorial sea, the contiguous zone, the exlusive economic zone, the continental shelf and the high seas. These zones are relevant when examine legal responsibility for marine pollution and compliance with environmental rules, since the zones are regulating which entity that has environmental rights and duties over different parts of the ocean.

The territorial sea is an area within 12 nautical miles from the coastal baseline meas- ured according to UNCLOS.⁷² The coastal state holds exclusive jurisdiction over this territory, however subject to UNCLOS and other rules of international law.⁷³ The contiguous zone is described as a zone contiguous to its territorial sea which extends within 24 nau- tical miles from the baseline.UNCLOS holds that coastal states may exercise control over their contiguous zone if it is necessary to prevent infringement of its customs or their fiscal-, immigration- or sanitary laws within its territory or to punish such already com- mitted infringements.⁷⁴ When it comes to the exlusive economic zone, a zone that shall not extent beyond 200 nautical miles from the baseline, the coastal state only has sovereign rights in some specific cases.⁷⁵ Such cases are exemplified in UNCLOS such as the purpose of exploring and exploiting, conserving and managing the natural resources, for marine scientific research or the protection and preservation of the marine environment.⁷⁶ The continental shelf can be described as “the seabed and subsoil of the submarine areas that extend beyond its territorial sea throughout the natural prolongation of its land territory to the outer edge of the continental margin.”⁷⁷ These submarine areas can however

72 UNCLOS, article 3 and 5.

73 UNCLOS, article 2.

76 UNCLOS, article 56 (1) (a) (b.ii and iii).

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not exceed 200 nautical miles from the baseline of the coastal state. In sense of sovereignty, coastal states exercise exclusive rights to explore and exploit natural resources within their continental shelf.⁷⁸ The exclusive right to exploit and explore natural resources on certain submarine areas becomes relevant to seabed-activities such as oil drilling or deep seabed mining.⁷⁹

Regarding the high seas, the concept about jurisdiction totally changes. The high seas are the place of the sea that is within no state’s jurisdiction; which, despite its “reservation for peaceful purposes”,⁸⁰ could be described as a sort of lawless area. The high seas are unconditionally open to all states, both coastal and land-locked and no state could right- fully claim any part of the high seas to be under its sovereignty.⁸¹ For instance, any state could in principle construct an artificial island or undertake oil-drilling operations on the high seas.⁸² Due to the absence of sovereignty in this area, no single state entity can alone be held responsible for environmental degradation in these open areas. The lack of ac- countability unfortunately tends to make the high seas a crime scene for marine pollution, among other crimes.⁸³

79 See example UNCLOS art. 80 about oil-drilling. Deep-seabed mining is not yet regulated in UNCLOS.

80 UNCLOS, article 88-89.

81 UNCLOS, article 86-87 and 89.

82 UNCLOS, article 87 (d).

83 Childers, ‘Stowaways and Crimes Aboard a Scofflaw Ship’, The New York Times (online), 17 July 2015 [online].

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3 International binding law on Marine Pollution from Land-Based Sources

United Nations Convention of Law of the Sea; UNCLOS

Background

The most relevant international legal framework for the law of the sea is UNCLOS which came into force in 1994 as a result of the negotiations from the third United Nations Conference on the Law of the Sea held in New York between 1973 and 1986. Some scholars even argue that its principles constitute international customary law as UNCLOS today has 167 parties including regional parties such as the EU.⁸⁴

The UNCLOS laid the first comprehensive framework for the protection of the marine environment. Some provisions assess land-based pollution specifically, such as article 194 regarding the obligation for states to take necessary measures to prevent all forms of marine pollution, article 207 regarding states obligations to adopt laws to combat land- based pollution and article 213 about states obligation to enforce these laws.⁸⁵ However, in relation to environmental protection, UNCLOS is heavily dependent on the principle of state sovereignty.⁸⁶ Still, as marine pollution due to ecological effects rapidly can go from a national action to a global problem, the justification of State sovereignty in marine environmental matters can, as earlier stated, arguably be subject to further scrutiny.

Marine pollution from land-based sources always exclusively occur within internal waters such as rivers or within the territorial sea. Since these zones are within the coastal states own sovereignty, the vast majority of all of the land-based pollution occurs within the legal discretion of individual states.⁸⁷ Hence, the main principle is that the regulation on land-based pollution is within the discretion of national law and sovereignty. However, land-based pollution is a problem far from restricted within sovereign waters since the debris are transported with ocean currents to the high seas and also into sovereign waters of other states.⁸⁸ Therefore, land-based pollution is at least regulated in international law to some extent.

84 Rothwell and Stephens, “The international Law of the Sea” (Hart Publishing 2nd ed, 2016), p. 19.

85 UNCLOS, article 194, 207 and 213.

86 UNCLOS, Preamble, Article 2, 8 and 55.

87 UNCLOS article 3.

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States duty to adopt laws to combat land-based Pollution

Article 207 claims that the member states shall adopt laws, regulations or other measures that are ‘necessary’ to prevent, reduce and control marine pollution from both land-based sources as well as internal waters.⁸⁹ However, UNCLOS does not prescribe how these legal procedures or other measures shall be taken. Still, it prescribes that the member states should take internationally agreed rules, standards and recommended practices and procedures on marine pollution ‘into account’.⁹⁰ However, the expression “take into account” does not set any absolute mandatory requirement for states to implement international law as well as the term “necessary” leaves it to individual states’ interpretation to decide what is necessary. Thus, states are left with a wide discretion on how to formulate their own laws for land-based pollution without any international standards setting the minimum requirements.⁹¹

The only specific requirement originating from UNCLOS is article 207(5), which states that national adopted rules to combat land-based pollution shall cover the release of “toxic, harmful or noxious substances, especially those which are persistent.”⁹² This is further stressed in the more general article 194 on marine pollution, which states that preventative measures shall be taken to minimise “the release of toxic, harmful and noxious substances, especially those which are persistent, from land-based sources (…).”⁹³ Whether persistent substances includes plastic is not mentioned in UNCLOS. However, according to the Stockholm Convention on Persistent Organic Pollutants (Stockholm Convention), which was created with the goal, among others, to determine the classifica- tions of persistent organic pollutions, some specific chemicals are mentioned as being persistent.⁹⁴ In fact, all persistent organic pollutants identified in the Stockholm Conven- tion were found to share the characteristics of being persistent and being able to travel long distances through different media.⁹⁵ As mentioned earlier in this thesis, UNEP has pointed out that the cold conditions in the sea and the lack of sunlight makes degradation very slow for plastic, where some sorts of plastic are estimated to take up to 600 years to

89 UNCLOS article 207 (1-2).

90 UNCLOS article 207 (1).

91 Boyle, above n 16, 353f.

93 UNCLOS, article 194 (3) (a).

94 The Stockholm Convention on Persistent Organic Pollutants, signed 2001 entered into force in 2004, annex A. See also particularly part 3.3 in this thesis that examines the Stockholm Convention further.

95 Ming, “Persistent toxic substances: sources, fates and effects” (in Reviews on Environmental Health, vol. 27, Issue 4, De Gryer, 2012), p. 207, [online].

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dissolve in sea-conditions.⁹⁶ Plastics is also a form of marine pollutants that are able to travel long distances.⁹⁷ Therefore, by interpreting the Stockholm Convention, some sorts of marine plastic debris could most likely be considered persistent, which, according to UNCLOS, must be regulated by its member states. Since these facts makes it inevitable that at least some sorts of plastic are to be classified as persistent, if not toxic, harmful or noxious, it is unfortunate that UNCLOS does not give more guidance to what specific substances article 207(5) should be applied on. By not explicitly stating plastic as persistent, toxic, harmful or noxious, UNCLOS arguably fails in addressing the huge need of preventing and reducing plastic litter from entering the marine environment.

Special needs of developing countries

The reason why UNCLOS desisted from setting mandatory environmental standards on states regarding land-based pollution is not because it relies on the good faith of states.⁹⁸ Rather, the lack of mandatory regulation is an effect of negotiations made under the third UN Conference on the Law of the Sea in the 1970s, where developing countries urged recognition of their ‘special needs’ on implementing environmental standards to their internal waters.⁹⁹ Moreover, ‘special needs’, in this context, was referring to lack of resources to implement strict pollution laws. Therefore, UNCLOS explicitly mentions that development states are allowed to consider their need for economic development and economic capacity when regulating MPLBS.¹⁰⁰ Similar argumentations were also made in regard to article 194 (1) of UNCLOS, which claims that states shall protect the marine environment “in accordance with their capabilities.”¹⁰¹

Even though one could argue that legislation is as most efficient when it has factual potentials to be achieved by leaving space for flexibility,¹⁰² there are also great risks with having too flexible and lenient legislations. Not to mention the risk of poor results, one could also question whether it is reasonable for all countries to be subject to the same standards when they do not share similar economic preconditions. Although the purpose with the lenient construction of land-based pollution regulations in UNCLOS was to meet the requirements of developing countries, it also opens up for industrialized states to free-

96 UNEP, above n 8, pp. 30-33.

99 Ibid, p. 345.

101 Boyle, above n 16, p. 354 and UNCLOS article 194 (1).

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ride on these loose requirements by not undertaking substantial environmental protection laws.¹⁰³

Enforcement of states duty to regulate land-based pollution

Since land-based pollution occurs within the internal water or the territorial sea of individual states, the jurisdiction for these measures are within national legal orders.¹⁰⁴ There- fore, the enforcement of states’ obligations to regulate land-based pollution is likewise mostly left to the jurisdiction of national states. Still, UNCLOS stresses in article 213 that states ‘shall’ take necessary measures to implement applicable international rules and standards to prevent, reduce and control pollution from land-based sources.¹⁰⁵ This is interesting for two reasons. The first one is that the binding nature of states implementing international law shifts from article 207 to 213, where states duty to implement international rules and standards goes from “taking into account” to “shall”.¹⁰⁶ The second reason is that UNCLOS seem to assume that it exists clear international rules on land-based pollution that will assist the adoption of national laws to control and reduce land-based marine pollution. This is particularly worrying since there is no current international framework exclusively and directly regulating land-based pollution.¹⁰⁷ Thus, the conclusions to draw concerning the enforcement of UNCLOS duty for states to adopt laws on MPLBS, is that it does not foresee any clear enforcement mechanism today. In fact, the general approach of article 207 and 213 in combination with the absence of any concrete requirements for national legislation makes enforcement practically impossible.¹⁰⁸

If there, despite the vagueness of the provisions, would be any legal proceedings based on article 207, all inter-state disputes are settled in international courts such as the Inter- national Court of Justice (ICJ) or the International Tribunal of Law of the Sea (ITLOS).¹⁰⁹ Whereas if a dispute has more civil characteristics, it can usually be invoked within states’

national courts. ITLOS and ICJ have jurisdiction over all state parties in matters that relate to the interpretation and application of UNCLOS.¹¹⁰ In state practice, the scope of jurisdiction for ITLOS has been interpreted in a broad sense as even disputes that partly rely

104 UNCLOS, article 3 and 207 (1).

106 UNCLOS, article 207 (1) and 213.

107 There are international Conventions except from UNCLOS that regulate MPLBS, but more indirectly, such as the Basel Convention and Stockholm Convention but they are not referred to in UNCLOS.

108 Boyle, above n 16, p. 362-63.

110 Statute of the international tribunal for the Law of the Sea, article 20-21.