Marine plastics: Fragmentation, effectiveness and legitimacy in international lawmaking

• Author: Naporn Popattanachai,Elizabeth A. Kirk
• DOI: http://doi.org/10.1111/reel.12261
• Date: 01 November 2018
• Published date: 01 November 2018

SPECIAL ISSUE ARTICLE

Marine plastics: Fragmentation, effectiveness and legitimacy

in international lawmaking

Elizabeth A. Kirk

|

Naporn Popattanachai

Correspondence

Email: elizabeth.kirk@ntu.ac.uk Much of the plastic rubbish that is now found in our oceans comes from land‐based

sources. From plastic bags, to toothbrushes and plastic nurdles, plastic enters the

oceans through, for example, discharges or dumping in rivers, from waste dumped

on land blowing into watercourses, and from landfill sites which have been built too

close to the coastline and are damaged by storms. This article explains the weak-

nesses in the current law on marine pollution from land‐based sources and activities

that pave the way for such widespread pollution of our oceans, before examining

possible legal solutions to this problem. The article assesses potential solutions to

this problem using insights from literature on fragmentation and on effectiveness

and legitimacy of regimes. In constructing this analysis, the article thus develops

understandings of when and why the adoption of treaties may be both appropriate

and effective.

1

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INTRODUCTION

It hardly needs stating that most of the plastic that is now found in

our oceans comes from land‐based sources.

1

From plastic bags to

toothbrushes and plastic nurdles, plastic enters the oceans through,

for example, discharges or dumping in rivers,

2

from waste dumped

on land blowing into watercourses, and from landfill sites which have

been built too close to the coastline

3

and damaged by storms. That

this is happening may seem odd given that Article 207 of the United

Nations Convention on the Law of the Sea (LOSC)

4

requires States

to adopt laws and procedures to manage marine pollution from land‐

based activities. One would anticipate that States would have

adopted national legislation to tackle this problem and indeed, some

States have. Kenya, for example, has banned the production, import,

export and use of single‐use plastic bags.

5

Other countries have

adopted less stringent measures. The United Kingdom, for example,

has imposed a levy on the use of single‐use plastic bags.

6

These

national measures raise the question of why more is not being done

at the State level and what exactly international law requires of

States in relation to marine plastics pollution from land‐based pollu-

tion. They also raise the questions of what further measures could

be adopted and where the best location of new measures lies in

what is (as we demonstrate) a fragmented regime on plastics –ques-

tions which are germane to any area of international lawmaking.

Should they be adopted under an existing treaty (or treaties) or

through a new treaty, mirroring, for example, the conventions on

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1

See M Eriksen et al, ‘Plastic Pollution in the World's Oceans: More than 5 Trillion Plastic

Pieces Weighing over 250,000 Tons Afloat at Sea’(2014) 9 PLoS ONE e111913; see also

M Bergmann, MB Tekman and L Gutow, ‘Marine Litter: Sea Change for Plastic Pollution’

(2017) 544 Nature 297; United Nations Environment Programme (UNEP), ‘Marine Plastic

Debris and Microplastics: Global Lessons and Research to Inspire Action and Guide

Policy Change’(UNEP 2016); Ocean Conservancy and McKinsey Centre for Business

and Environment, ‘Stemming the Tide: Land‐based Strategies for a Plastic Free Ocean’

(2017) <https://oceanconservancy.org/wp-content/uploads/2017/04/full-report-stemming-the

.pdf>; M Haward, ‘Plastic Pollution of the World's Seas and Oceans as a Contemporary

Challenge in Ocean Governance’(2018) 9 Nature Communications 667.

2

D Morritt et al, ‘Plastics in the Thames: A River Runs through It’(2014) 78 Marine Pollu-

tion 196; JR Jambeck et al, ‘Plastic Waste Inputs from Land into the Ocean’(2015) 347

Science 768; AA Horton et al, ‘Large Microplastic Particles in Sediments of Tributaries of

the River Thames, UK –Abundance, Sources and Methods for Effective Quantification’

(2017) 114 Marine Pollution Bulletin 218.

3

JH Tibbetts, ‘Managing Marine Plastic Pollution: Policy Initiatives to Address Wayward

Waste’(2015) 123 Environmental Health Perspectives A90; VG Carman, N Machain and C

Campagna, ‘Legal and Institutional Tools to Mitigate Plastic Pollution Affecting Marine

Species: Argentina as a Case Study’(2015) 92 Marine Pollution Bulletin 125.

4

United Nations Convention on the Law of the Sea (adopted 10 December 1982, entered

into force 16 November 1994) 1833 UNTS 3 (LOSC).

5

Environmental Management and Co‐ordination Act, The Kenya Gazette Vol. CXIX, No. 31,

p. 1077 (14 March 2017), Sections 3 and 86.

6

See, e.g., the Single Use Carrier Bags Charges (England) Order 2015.

DOI: 10.1111/reel.12261

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