The problem of marine plastic pollution is undoubtedly a global concern. As we already stated, plastic debris can be found in any ocean and sea worldwide, which are indeed all connected to each other. In addition, once it enters the sea, it has no owner, and this makes its management difficult and highly dependent on good international and regional collaboration. There are maritime zones under national sovereignty or jurisdiction – territorial sea, contiguous zone, exclusive economic zone, and continental shelf –,611 but there are also areas beyond the limits of national jurisdiction, namely the high seas,612 that cover 45% of the Earth’s surface and 64% of the oceans, including all gyres and garbage patches existent. The high seas are open to all States, whether coastal or land-locked, and all of them enjoy
611 UNCLOS is responsible for the definition of maritime zones and their boundaries, worldwide. Each of these
zones have different jurisdictional rights: they become weaker as we move away from the coast. So, in the territorial sea (that can be breadth up to a limit not exceeding twelve nautical miles measured from baselines determined in accordance with this Convention, coastal States are sovereign (see Articles 2(1) and 3 UNCLOS). This sovereignty extends to the air space over the territorial sea as well as to its bed and subsoil, see Article 2(2). In the contiguous zone, adjacent to territorial sea and that may not extend beyond 24 nautical miles from the baselines from which the breadth of the territorial sea is measured, the coastal States may only ‘exercise the control necessary to: (a) prevent infringement of its customs, fiscal, immigration or sanitary laws and regulations within its territory or territorial sea; (b) punish infringement of the above laws and regulations committed within its territory or territorial sea’ (Article 33). In the exclusive economic zone (EEZ), which is the area beyond and adjacent to the territorial sea that shall not extend beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured, the coastal States have: ‘(a) sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources, whether living or non-living, of the waters superjacent to the seabed and of the seabed and its subsoil, and with regard to other activities for the economic exploitation and exploration of the zone, such as the production of energy from the water, currents and winds; (b) jurisdiction as provided for in the relevant provisions of this Convention with regard to: (i) the establishment and use of artificial islands, installations and structures; (ii) marine scientific research; (iii) the protection and preservation of the marine environment; (c) other rights and duties provided for in this Convention. (see Articles 55, 56 and 57). At last, in the continental shelf – area that ‘comprises 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, or to a distance of 200 nautical miles from the baselines from which the breadth of the territorial sea is measured where the outer edge of the continental margin does not extend up to that distance’, see Article 76(1) – the coastal States exercise sovereign rights for the purpose of exploring it and exploiting its natural resources, that ‘consist of the mineral and other non-living resources of the seabed and subsoil together with living organisms belonging to sedentary species, that is to say, organisms which, at the harvestable stage, either are immobile on or under the seabed or are unable to move except in constant physical contact with the seabed or the subsoil’, see Article 77(1 and 4).
612 The high seas are defined in Article 86 UNCLOS as ‘all parts of the sea that are not included in the exclusive
economic zone, in the territorial sea or in the internal waters of a State, or in the archipelagic waters of an archipelagic State’. Area is also a maritime area beyond the limits of national jurisdiction, meaning the ‘seabed and ocean floor and subsoil thereof, beyond the limits of national jurisdiction’, see Article 1(1(1)). Its resources are the common heritage of mankind and no State shall claim or exercise sovereignty or sovereign rights over any part of the area or its resources, nor shall any State or natural or juridical person appropriate any part thereof, see Articles 136 and 137(1).
freedom of navigation, fishing, and scientific research.613 These are definitely international
waters, that no State can validly subject to its sovereignty,614 and that can only be regulated
by international public law.
However, the optimal solution to handle specifically marine plastic pollution is more specialised than just international public law: it is international environmental law. Since its characteristics differ greatly from the ones of classic international public law, it is imperative to clarify them.615 The main difference is that international environmental law does not regulate only the conducts of the States, and that occurs because environmental harmful practices are caused mostly by private behaviours and not so much by the actions of the States. In addition, these harmful practices are triggered by physical and technological events and not often by political causes (such as wars, human rights protection and trade), which means that the recognition and the resolution of these problems are subject to very high uncertainty levels. Another differentiating factor between environmental and classic international public law is that environmental matters are clearly interconnected and demand a holistic, global and all side approach. Moreover, because of the magnitude and the dynamism of ecological damages, that can cut across all borders, there is a compelling need to share information and scientific knowledge and to continuously update data, numbers and limits associated with biodiversity, ecosystems and environmental goods’ usage.
The referred characteristics are perfectly in line with the reality of marine plastic pollution presented in Part I. Moreover, in the light of these facts, international cooperation is of vital importance. International environmental law is thus determining to tackle this pollution problem in a more effective way. To assure that, States need the collaboration of international organisations, such as the United Nations.616
613 See Article 87(1) UNCLOS, where it is included freedom to lay submarine cables and pipelines and to construct
artificial islands and other installations permitted under international law.
614 Article 89 UNCLOS.
615 Clarification shared by Carla Amado Gomes in Introdução ao..., 50-1.
616 The United Nations is an international governmental organisation established in 1945 and currently made up of
193 Member States. Respecting the purposes (maintain international peace and security, protect human rights, deliver humanitarian aid, promote sustainable development, and uphold international law) and the principles contained in its founding Charter, the UN can take action – and at the same time promote multilateral relations of mere cooperation between its Member States – on the issues nowadays confronting humanity, such as peace and security, climate change, sustainable development, human rights, disarmament, terrorism, humanitarian and health emergencies, gender equality, governance, food production, and more. To work with such wide scope, it was created the UN system, made up of the UN itself and many affiliated programmes (UNEP and UNDP), funds, and specialised agencies (UNESCO and IMO), all with their own membership, leadership and budget. The specialised agencies are independent international organisations funded by both voluntary and assessed contributions. At last, we add that the UN Charter contains a supremacy clause that makes it the highest authority of international law.
By enabling dialogue between its 193 Members States, and by hosting negotiations on a wide variety of subjects, the United Nations has become a mechanism for governments to cooperate and to find areas of agreement in order to try to solve problems together. With respect to environment, the UN enterprise began in the 1970’s, particularly after the Declaration of the United Nations Conference on the Human Environment, celebrated in Stockholm, in June 1972.617 Since then, a range of legal initiatives particularly related to sea pollution, covering all marine debris and most of its sea-based sources have been put in place. They are of great importance, especially because a lot is happening on the high seas, and according to International Maritime Organisation (IMO),618 over 90% of world trade – being
it raw materials, commodities, finished goods, food or fuel – is carried by sea. However, marine plastic pollution is a new problem with particular features. Besides being recognised and taken seriously, – and not only by the UN –, land-based sources must be also regulated and controlled, particularly because they account for as much as 80% of all marine pollution. Therefore, after explaining how marine plastic litter assumed considerable importance in international scenario, we will enumerate and evaluate the potentiality of some existing policies and instruments in the resolution of the problem, whether they concern water pollution, POPs, waste management, resource efficiency, biodiversity or other related themes.