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Managing Marine Litter: Exploring the Evolving Role of International and European Law in Confronting a Persistent Environmental Problem

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Managing Marine Litter: Exploring the Evolving Role of International and European Law in Confronting a Persistent Environmental Problem Article Managing Marine Litter: Exploring the Evolving Role of International and European Law in Confronting a Persistent Environmental Problem Arie Trouwborst Keywords Marine litter, Plastic pollution, International Environmental Law, OSPAR Convention, Marine Strategy Framework Direc- tive. Abstract The contamination of the world’s oceans by human garbage, especially plastics, ranks among those environmental problems whose resolution appears remote, despite the considerable public attention paid to the ‘Great Garbage Patch’ in the Pacific, ‘plastic soup’, and the like. This ‘marine litter’ (or ‘marine debris’) problem is characterized by diffuse sources and an array of adverse environmental impacts, including entanglement of and ingestion by albatrosses, fulmars, turtles, seals and a variety of other marine wildlife. This article explores the evolving role of international law in the efforts to manage marine litter, including recent developments involving the Convention for the Protection of the Marine Environment of the North-East Atlantic (OSPAR Convention) and the European Union’s Marine Strategy Framework Directive (MSFD). Author Affiliations Dr Arie Trouwborst, LLM, is a lecturer in international and European environmental law at the Department of European and International Public Law of Tilburg Law School in the Netherlands, and is a member of the Tilburg Sustainability Center (TSC) and the Center for Transboundary Legal Development (CTLD). Merkourios 2011 – Volume 27/Issue 73, Article, pp. 04-18. URN: NBN:NL:UI:10-1-100930 ISSN: 0927-460X URL: www.merkourios.org Publisher: Igitur, Utrecht Publishing & Archiving Services Copyright: this work has been licensed by the Creative Commons Attribution License (3.0) Merkourios - International and European Environmental Law - Vol. 27/73 04 Seeing a parent albatross gagging up a toothbrush changed my worldview. [...] No matter what coordinates you choose, from waters polar, to solar coral reefs, to the remotest turquoise atoll – no place, no creature remains apart from you and me. – C Safina,Eye of the Albatross (Henry Holt and Co 2002) 279. Article Case Note In a high-tech era of radiation, carcinogenic chemicals, and human-induced climate change, the problem of the trash produced by ocean-going vessels or litter swept out to sea must seem old-fashioned by comparison. [...] Regrettably, that perception is wrong. – US Senator Daniel Inouye, ‘Statements on Introduced Bills and Joint Resolutions’.1 I. Introduction The purpose of this article is to review the role of international law in managing the problem of ‘marine litter’ (or ‘marine debris’), with a particular focus on recent developments regarding global and regional instruments, including the Convention for the Protection of the Marine Environment of the North-East Atlantic (OSPAR Convention)2 and the Marine Strategy Framework Directive (MSFD) of the European Union (EU).3 Central questions guiding the analyses in this article are to what extent international law is already contributing to solving the marine litter problem, and how much room for improvement remains. Section II introduces the nature of the problem, including the sources, distribution and environmental impacts of marine litter. Section III explores the applicable international legal framework and contains discussion of recent developments at global and regional levels, including in the context of the OSPAR Convention and the MSFD. Section IV evaluates the contribution of this international legal framework to the control of marine litter. Section V, finally, sets out succinct conclusions. II. Marine Litter Before discussing applicable legal instruments, an introduction is called for regarding the origins, environmental impacts and other characteristics of marine litter. This introduction of relevant facts draws on a large and steadily increasing number of expert reports and scientific papers.4 II.1. Key Features of Marine Litter Two United Nations Environment Programme (UNEP) reports dedicated to the topic define marine litter as ‘any persistent, 1 151 Congressional Record, S1261-02, S1295-S1296 (10 February 2005); cited in SL Dautel, ‘Transoceanic Trash: International and United States Strategies for the Great Pacific Garbage Patch’ (2009) 3 Golden Gate University Environmental Law Journal 181, 181. 2 Convention for the Protection of the Marine Environment of the North-East Atlantic (adopted 22 September 1992, entered into force 25 March 1998) 32 ILM 1069 (OSPAR Convention). 3 Directive 2008/56/EC of the European Parliament and the Council of 17 June 2008 establishing a framework for Community action in the field of marine environmental policy [2008] OJ L164/19 (Directive 2008/56/EC). 4 For readers wishing to obtain a more detailed understanding of the marine litter problem, the following selected sources constitute a proper starting point: JM Coe and DB Rogers (eds), Marine Debris: Sources, Impacts, and Solutions (Springer 1997); RC Thompson and others, ‘Lost at Sea: Where is All the Plastic?’ (2004) 304 Science 838; JGB Derraik, ‘The Pollution of the Marine Environment by Plastic Debris: A Review’ (2008) 44 Marine Pollution Bulletin 842; S Katsanevakis, ‘Marine Debris, a Growing Problem: Sources, Distribution, Composition, and Impacts’ in TN Hofer (ed), Marine Pollution: New Research (Nova Science Publishers 2008) 53; RC Thompson and others, ‘Our Plastic Age’ (2009) 364 Philosophical Transactions of the Royal Society B 1973; RC Thompson and others, ‘Plastics, the Environment and Human Health: Current Consensus and Future Trends’ (2009) 364 Philosophical Transactions of the Royal Society B 2153; MP Gregory, ‘Environmental Implications of Plastic Debris in Marine Settings – Entanglement, Ingestion, Smothering’ (2009) 364 Philosophical Transactions of the Royal Society B 2013; UNEP Marine Litter: An Analytical Overview (UNEP 2005); UNEP/GPA State of the Marine Environment: Trends and Processes (UNEP/GPA 2006) 26-28; UNEP Marine Litter: A Global Challenge (UNEP 2009); UNEP UNEP Year Book 2011 (UNEP 2011) 20-33; Committee on the Effectiveness of International and National Measures to Prevent and Reduce Marine Debris and its Impacts, Tackling Marine Debris in the 21st Century (National Academies Press 2008). The five International Marine Debris Conferences which have taken place since 2000 – the last of which took place in Hono- lulu in March 2011 – also merit attention <www.5imdc.org>. Selected popular accounts concerning marine litter are C Safina,Eye of the Albatross (Henry Holt and Co 2002) 152-158; A Weisman, The World Without Us (Thomas Dunne Books 2007) 112-128; J Goossens,Plastic Soup (Lemniscaat 2011); and D Hohn, Moby-Duck (Viking 2011). 05 Merkourios - International and European Environmental Law - Vol. 27/73 manufactured or processed solid material discarded, disposed of or abandoned in the marine and coastal environment’.5 This definition, which apparently builds on the definition used in the 1995 Global Programme of Action (GPA)6 on land- based marine pollution discussed below, is also employed in a 2010 MSFD report on marine litter.7 As the latter goes on to explain, marine litter consists of ‘items that have been made or used by people and deliberately discarded or unintentionally lost into the sea or coastline including such materials transported into the marine environment from land by rivers, drainage Article or sewage systems or wind’, for instance ‘plastics, wood, metals, glass, rubber, clothing, paper etc’.8 The report clarifies that ‘this definition does not include semi-solid remains of for example mineral and vegetable oils, paraffin and chemicals that sometimes litter sea and shores’.9 Plastic accounts for an estimated eighty percent of all marine litter. The sources of all this debris are diffuse and nearly as varied as the litter itself: Human behaviours and actions – accidental or intentional – are the sources of marine litter. The majority of sea or ocean-based sources of marine litter come from merchant shipping, ferries and cruise liners; fishing vessels; military fleets and research vessels; pleasure craft; offshore oil and gas platforms and drilling rigs; and aquaculture installations. Marine litter dispersion and deposition are strongly influenced by ocean currents, tidal cycles, regional-scale topography, including sea-bed topography and wind. Land-based sources of marine litter originate from coastal or inland areas including beaches, piers, harbours, marinas, docks and riverbanks. Municipal landfills (waste dumps) located on the coast, water bodies such as rivers, lakes and ponds that are used as illegal dump sites, riverine transport of waste from landfills and other inland sources, discharges of untreated municipal sewage and storm water, industrial facilities, medical waste, and coastal tourism involving recreational visitors and beach-goers, are the primary sources of land-based marine litter. Natural storm-related events such as hurricanes, tsunamis, tornadoes and floods can all create large amounts of materials that are washed from coastal areas that can end in the marine environment. High winds, large waves and storm surges produced by these natural events cause land-based items to be introduced into the marine environment.10 Globally, land-based sources are estimated to account for some four-fifths of marine litter, with the remaining one-fifth stemming from marine sources. The division between sources differs from region to region, however. In the densely navigated North Sea, for example, half of all marine litter
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