International Environmental Law: Efficacy of Existing Frameworks in Reducing Marine Litter

This essay discusses the efficacy of international frameworks in reducing marine litter and the shortcomings in reducing chief sources of plastic pollution. It also highlights solution options that might be effective if incorporated within the legal framework to reduce the occurrence of marine litter.

Running head: INTERNATIONAL ENVIRONMENTAL LAW
International Environmental Law
Name of the Student
Name of the University
Author Note

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Part 2
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 litter1.
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.
1Ari Trouwborst, ‘Managing Marine Litter: Exploring the Evolving Role of International and European Law in
Confronting a Persistent Environmental Problem’ (2011) 27 Merkourios – Utrecht Journal of International and
European Law 4.

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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 19752. 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 agents3.
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 flag4.
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
2 Karim, Saiful. "IMO Institutional Structure and Law-Making Process." Prevention of Pollution of the Marine
Environment from Vessels. Springer, Cham, 2015. 15-41.
3 Mark Gold, Katie Mika, Cara Horowitz, Megan Herzog, ‘Stemming the Tide of Plastic Litter: A Global Action
Agenda’ (2014) 27 Tulane Environmental Law Journal 165
4 Jessica R Coulter, ‘A Sea Change to Change the Sea: Stopping the Spread of the Pacific Garbage Patch with
Small-Scale Environmental Legislation’ (2010) 51 William And Mary Law Review 1959

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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 Case5.
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
minimization6. 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 activities7.
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 consumers8.
5 Philippines v. China (PCA case number 2013–19).
6 Miller, Katie, et al. "Great Pacific Garbage Patch." (2016).
7 Becker, Miri, et al. "Great Pacific Garbage Patch." (2012).
8 Arias, Andrés Hugo, and Jorge Eduardo Marcovecchio. "International Regulatory Responses to Global Challenges
in Marine Pollution and Climate Change." Marine Pollution and Climate Change. CRC Press, 2017. 287-330.

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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 activities9. 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.
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
Protocol10.
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
9 Kennish, Michael J. Practical handbook of estuarine and marine pollution. CRC press, 2017.
10 Grant A Harse, ‘Plastic, the Great Pacific Garbage Patch, and International Misfires at a Cure’ (2011) 29 Journal
of Environmental Law 331

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like criteria to establish, permitting and addressing priority pollutants as well as the manner in
which protocol is applied to a particular pollution source11. 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
pollution12.
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
solution13. 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
11 Van Sebille, Erik, Matthew H. England, and Gary Froyland. "Origin, dynamics and evolution of ocean garbage
patches from observed surface drifters." Environmental Research Letters 7.4 (2012): 044040.
12 Zhu, Xiao Yu, et al. "Difficulties faced in controlling marine plastic pollution under MARPOL (ANNEX V)."
(2015).
13 Grant A Harse, ‘Plastic, the Great Pacific Garbage Patch, and International Misfires at a Cure’ (2011) 29 Journal
of Environmental Law 331

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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 possible14.
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 provisions15.
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
14Schiffman, Howard S. "The Law of the Sea and Other Instruments of International Law as a Framework for
Environmental Conservation in North American Waters." Widening the Scope of Environmental Policies in North
America. Palgrave Macmillan, Cham, 2018. 57-76.
15Mark Gold, Katie Mika, Cara Horowitz, Megan Herzog, ‘Stemming the Tide of Plastic Litter: A Global Action
Agenda’ (2014) 27 Tulane Environmental Law Journal 165.

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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 restricted16. 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 circumstances17.
16Godlund, Josefin, Annika Nilsson, and Elena Fuchs. "ARE THE CURRENT INTERNATIONAL
REGULATIONS SUFFICIENT ENOUGH TO COMBAT MARINE POLLUTION (FOCUS ON OIL
POLLUTION) CAUSED BY SHIPPING ACTIVITIES?." (2015).
17Warner, Robin. "Environmental Assessment in Marine Areas Beyond National Jurisdiction: Practice and
Prospects." Proceedings of the ASIL Annual Meeting. Vol. 111. Cambridge University Press, 2017.

8INTERNATIONAL ENVIRONMENTAL LAW
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 ship18.
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
Patch19. 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.
18Jessica R Coulter, ‘A Sea Change to Change the Sea: Stopping the Spread of the Pacific Garbage Patch with
Small-Scale Environmental Legislation’ (2010) 51 William And Mary Law Review 1959
19Techera, Erika J., and John Chandler. "Offshore installations, decommissioning and artificial reefs: Do current
legal frameworks best serve the marine environment?." Marine Policy 59 (2015): 53-60.

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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
implemented20.
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 agreement21.
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 persists22. 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,
20Haas, Peter M. "Prospects for effective marine governance in the NW Pacific region." Epistemic Communities,
Constructivism, and International Environmental Politics. Routledge, 2015. 172-188.
21Haward, Marcus. "Plastic pollution of the world’s seas and oceans as a contemporary challenge in ocean
governance." Nature communications 9.1 (2018): 667.
22 Vince, Joanna, and Britta Denise Hardesty. "Plastic pollution challenges in marine and coastal environments: from
local to global governance." Restoration Ecology 25.1 (2017): 123-128.

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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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References
Ari Trouwborst, ‘Managing Marine Litter: Exploring the Evolving Role of International and
European Law in Confronting a Persistent Environmental Problem’ (2011) 27 Merkourios –
Utrecht Journal of International and European Law 4.
Arias, Andrés Hugo, and Jorge Eduardo Marcovecchio. "International Regulatory Responses to
Global Challenges in Marine Pollution and Climate Change." Marine Pollution and Climate
Change. CRC Press, 2017. 287-330.
Becker, Miri, et al. "Great Pacific Garbage Patch." (2012).
Godlund, Josefin, Annika Nilsson, and Elena Fuchs. "ARE THE CURRENT
INTERNATIONAL REGULATIONS SUFFICIENT ENOUGH TO COMBAT MARINE
POLLUTION (FOCUS ON OIL POLLUTION) CAUSED BY SHIPPING ACTIVITIES?."
(2015).
Grant A Harse, ‘Plastic, the Great Pacific Garbage Patch, and International Misfires at a Cure’
(2011) 29 Journal of Environmental Law 331
Haas, Peter M. "Prospects for effective marine governance in the NW Pacific region." Epistemic
Communities, Constructivism, and International Environmental Politics. Routledge, 2015. 172-
188.
Haward, Marcus. "Plastic pollution of the world’s seas and oceans as a contemporary challenge
in ocean governance." Nature communications 9.1 (2018): 667.

12INTERNATIONAL ENVIRONMENTAL LAW
Jessica R Coulter, ‘A Sea Change to Change the Sea: Stopping the Spread of the Pacific Garbage
Patch with Small-Scale Environmental Legislation’ (2010) 51 William And Mary Law Review
1959
Karim, Saiful. "IMO Institutional Structure and Law-Making Process." Prevention of Pollution
of the Marine Environment from Vessels. Springer, Cham, 2015. 15-41.
Kennish, Michael J. Practical handbook of estuarine and marine pollution. CRC press, 2017.
Mark Gold, Katie Mika, Cara Horowitz, Megan Herzog, ‘Stemming the Tide of Plastic Litter: A
Global Action Agenda’ (2014) 27 Tulane Environmental Law Journal 165
Miller, Katie, et al. "Great Pacific Garbage Patch." (2016).
Philippines v. China (PCA case number 2013–19)
Schiffman, Howard S. "The Law of the Sea and Other Instruments of International Law as a
Framework for Environmental Conservation in North American Waters." Widening the Scope of
Environmental Policies in North America. Palgrave Macmillan, Cham, 2018. 57-76.
Techera, Erika J., and John Chandler. "Offshore installations, decommissioning and artificial
reefs: Do current legal frameworks best serve the marine environment?." Marine Policy 59
(2015): 53-60.
Van Sebille, Erik, Matthew H. England, and Gary Froyland. "Origin, dynamics and evolution of
ocean garbage patches from observed surface drifters." Environmental Research Letters 7.4
(2012): 044040.

13INTERNATIONAL ENVIRONMENTAL LAW
Vince, Joanna, and Britta Denise Hardesty. "Plastic pollution challenges in marine and coastal
environments: from local to global governance." Restoration Ecology 25.1 (2017): 123-128.
Warner, Robin. "Environmental Assessment in Marine Areas Beyond National Jurisdiction:
Practice and Prospects." Proceedings of the ASIL Annual Meeting. Vol. 111. Cambridge
University Press, 2017.
Zhu, Xiao Yu, et al. "Difficulties faced in controlling marine plastic pollution under MARPOL
(ANNEX V)." (2015).

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