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UNCLOS at 40: Advancing Ocean Governance to deal with Marine Plastic Pollution

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The anthropogenic crisis of marine plastic pollution is adding a new layer of complexity in dealing with issues of climate change. Lewis and Maslin in their seminal article Defining the Anthropocene argued that recent global environmental changes suggest that Earth may have entered a new human-dominated geological epoch, the Anthropocene. This Anthropocene epoch is also a witness to the influence of human activity on Earth. Manifestation of this can be seen by the impact of the mass production of plastics on the atmosphere.

In my previous article on UNCLOS at 40: Future of Law of Seas, Marine Pollution and Climate Change, I argued that the 40th anniversary of the 1982 United Nations Convention on the Law of the Sea (UNCLOS) calls for an examination of how UNCLOS as a global environmental governance agreement is responding to current environmental challenges. The severest challenge for UNCLOS is ocean plastics pollution which has now become a global crisis. UNCLOS provides a detailed set of provisions and mandates for member states to deal with marine pollution. The preamble of UNCLOS provides that the problems of ocean space are closely interrelated and need to be considered as a whole, and in this context plastic pollution and climate change are fundamentally linked in relation to marine pollution.

UNCLOS has developed a detailed set of mandates to prevent marine pollution. Article 210(1) of the UNCLOS obliges states to develop frameworks to prevent, reduce and control pollution of the marine environment by dumping. Article 210(5) also provides that any signatory State has the right to permit, regulate and control such dumping after due consideration of the matter with other States which by reason of their geographical situation may be adversely affected thereby. Critics have argued that because ocean pollution is a transnational issue unrestrained by boundaries and the sources of marine waste, in general, and plastic debris, in particular, are often difficult to identify, the measures envisioned by UNCLOS to address the problem of plastic pollution in the ocean seem to be ineffective.

The role of the United Nation’s specialised agencies becomes very critical to deal with marine pollution, most importantly the role of IMO. The IMO’s marine environmental regulatory governance structure aims to prevent and control marine pollution from ships, and also the adoption and amendment of regulations or other provisions. Under Article 38, IMO can also consider appropriate measures to facilitate the enforcement of the conventions. In this case, IMO also has the institutional capacity to enforce conventions to regulate plastics.

In 2018, IMO adopted an Action Plan to address marine plastic litter from ships. In 2021, IMO’s Marine Environment Protection Committee (MEPC) adopted a Strategy to address marine plastic litter from ships. The 2021 strategy sets out the ambitions to reduce marine plastic litter generated from, and retrieved by, fishing vessels; reduce shipping’s contribution to marine plastic litter, and improve the effectiveness of port reception and facilities and treatment in reducing marine plastic litter.

The power of IMO in this matter originates from Article 211(1) of UNCLOS, which states that “States, acting through the competent international organization or general diplomatic conference, shall establish international rules and standards to prevent, reduce and control pollution of the marine environment.” Article 211(1) expressly deals with “international rules and standards” established by “States acting through the competent international organization”, in this case, the IMO. IMO has been active in its attempts to build platforms to address common problems to deal with plastic pollution. The problem of plastic pollution caused primarily due to dumping would require reading UNCLOS and IMO resolutions in tandem to regulate and prevent it.

UNCLOS at 40 provides space for building more institutional collaborations between UNCLOS institutions and IMO. The UN 2030 Agenda for Sustainable Development, Goal 14 calls for action to ‘Conserve and sustainably use the oceans, seas and marine resources’ and Target 14.1 states that ‘By 2025, prevent and significantly reduce marine pollution of all kinds, particularly from land-based activities, including marine debris and nutrient pollution’. In this context, effective ocean governance has a central place in building a sustainable future for humankind.

The responsibility is also on state governments to build regional and national legislative frameworks to respond to this crisis. Certainly, UNCLOS has a very prominent role in building global consensus on the issue. UNCLOS independently is a complex document with inherent limitations to deal with issues like ocean plastic pollution. Furthering ocean governance structures to deal with plastic pollution would require a greater partnership between global institutions in specific and further de-fragmentation of international law in general.

About the Author
Adithya A. Variath is the Coordinator of Centre for Research in Air and Space Law and Ph.D. candidate at Maharashtra National Law University Mumbai, India.
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