From the largest cities to the remote villages around the planet, plastic with all its convenience, hygiene and affordability benefits has become ubiquitous in people’s daily life. Unfortunately, the spiraling production of plastic and plastic products, a prevalent throwaway culture, and poor management of waste has devastating effects on the natural environment, the wildlife and, as is increasingly documented, on human health. Micro and nanoplastics are now found in the most remote areas of the planet, from the deepest ocean trenches to the planet’s poles, and on the current trend there will be more plastics than fish in the ocean by 2050.
The cultural, environmental, social and economic role of the ocean in the Pacific exposes the islands more than most to the threats of marine plastic pollution. National and regional law and policy measures taken by the Pacific states and territories to curb the problem will not alone resolve what is now a global crisis requiring a global solution. A growing body of research conducted under the auspices of the United Nations Environmental Assembly points to the urgent need to review and improve the current fragmented and ineffective global plastic legal regime.
Beginning with a brief outline of the extent of the plastic crisis globally and of its threats to the Pacific islands, this article summarises the key policy and regulatory responses to plastic pollution in the Pacific region and globally, highlighting the limitations and gaps of the current approach[1]. The emergence of a global momentum in support of an international legally binding instrument (ILBI) to prevent plastic and microplastics pollution is described in the context of the UN Environmental Assembly (UNEA) process and the work of the Ad Hoc Open Ended Expert Group on Marine Litter and Microplastics (AHEG). The last section outlines the historical development of the Pacific islands’ regional position with regards to plastic pollution and the current process to define a common position towards a new global regime governing plastics that reflects the Pacific islands’ regional and national priorities and ensure the protection of people and ocean from plastic pollution and its impacts.
Plastic pollution is a common sight along the Seawall in Suva, Fiji
Plastic pollution: A global crisis threatening the Pacific
A few facts and numbers are useful to grasp the scale and urgency of the global plastic pollution problem:
- Global yearly production of plastic is skyrocketing: from 2 million tonnes in 1950, to currently around 380 million tonnes, and is expected to quadruple by 2050
- Only 9% of all plastic produced is recycled, 91% ends up in landfills or in the environment.
- Every year, approximately 275 to 300 million tonnes of plastic waste are produced, and half of it is manufactured into single use plastic
- If the current trend continues, approximately 12 billion tonnes of plastic waste will be in landfills or the natural environment by 2050
- 80% of marine plastic litter comes from land-based sources
- 100 million tonnes of plastic is already polluting the oceans, and an additional 12 million tonnes leaks into our oceans every year
- Plastic litter is carried by ocean currents and congregates in gyres of plastic debris. The largest of all, the ‘Great Pacific garbage patch’ covers 1.6 million square kilometres.
- Around the world people ingest on average the equivalent of a credit card (5 g) of plastic microparticles per week, through food, water and air.
No less concerning is the contribution of plastic production and marine plastic pollution to climate change. While the energy sector is gradually shifting to renewable sources, plastic production is increasingly driving fossil fuel extraction. Furthermore, marine plastic pollution, through its impacts on plankton, reduces the oceans’ carbon sink capacity. The climate change adaptation capacity of ocean ecosystems and of the communities and economies depending on the oceans for livelihood and economic development is also adversely affected by marine plastic pollution and its impacts on fish stocks and the health of oceans’ ecosystems.
As with climate change, the Large Ocean Small Island Developing States of the Pacific are at the forefront of the impacts of plastic pollution despite their relatively minor contribution to the problem. As large ocean states the Pacific islands have more coastal areas and are thus more than other countries exposed to the flows of marine plastic litter brought by oceanic currents. The Pacific islands also depend on imported products, bringing onto the islands large quantities of plastics and a legacy of plastic waste that their limited resources struggle to manage.
The Pacific islands regional responses to plastic pollution
Regional actions on waste, including plastic waste, are spearheaded by the Secretariat of the Pacific Regional Environment Program (SPREP). They include regional agreements, strategies and plans associated with initiatives and projects supporting their implementation.
Regional agreements provide the legal basis to manage some aspects of plastic pollution as outlined below.
- The Convention for the Protection of Natural Resources and Environment of the South Pacific Region (or Nouméa Convention) is an umbrella convention for the protection of environment in the region. Its Dumping Protocol requires the Parties to “prevent, reduce and control pollution by dumping of wastes and other matter into the South Pacific.”
- The Convention to Ban the importation into Forum Island Countries of Hazardous and Radioactive Wastes and to Control the Transboundary Movement of Hazardous Wastes within the South Pacific Region, (or Waigani Convention) is the regional version of the international hazardous waste control regime (BSR Conventions – see below).
- The Parties to the Convention for the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean (WCPF Convention) agreed in 2017 on a binding Conservation Management Measure on Marine Pollution (CMM) seeking to address marine pollution from fishing vessels to protect marine ecosystems and fisheries from degradation.
In addition to these legally binding instruments, regional strategies and plans have been adopted to coordinate efforts to address waste and pollution issues including plastic pollution and assist the Pacific nations implement their regional and international legal obligations.
The Cleaner Pacific 2025 - Pacific Regional Waste and Pollution Management Strategy 2016-2025 is a comprehensive regional framework for sustainable waste management and pollution prevention in the Pacific region. The Strategy’s Implementation Plan 2016-2019 allocates responsibilities for individual activities to both the Secretariat and the Pacific island countries and territories. Another key regional instrument is the Pacific Marine Action Plan: Marine Litter (MLAP) 2018-2025 that was developed as part of the Regional Seas Programme and the Global Partnership on Marine Litter (GPML). MLAP sets out the policy context and key actions and activities to minimise marine litter across the Pacific island countries and territories, including terrestrial-based marine litter point sources. One of them is to “Support the development of a global legal framework to address marine litter and microplastics”. The MLAP also promotes a circular economy business model.
Regional and national governance of plastics and plastic litter are undoubtedly essential to managing plastic pollution, but sadly it has proved insufficient to resolve a rapidly growing plastic crisis. It cannot stop the waves of plastic litter and micro/nano plastics carried by oceanic currents polluting the Pacific waters and shores. Nor can it fully control the packaging and the design of products imported from other countries, leaving the islands with a significant legacy of plastic waste that is beyond the managing capacity of small developing islands’ economies. The plastic problem involves multinational companies and originates far beyond the borders of the Pacific islands countries and territories. Plastics’ full life cycle, - from production from fossil fuels, through to their trade, use and ultimately disposal, - is clearly a global issue that requires a concerted and global response.
Global responses to plastic pollution
The international legal instruments governing plastic pollution include those regulating hazardous waste and those regulating marine shipping activities.
The need to address the environmental and human impacts of hazardous chemicals and waste at the global level has been recognised by the international community during the last thirty years, leading to the adoption of the Basel, Rotterdam and Stockholm Conventions. These three conventions are collectively referred to as the BRS Conventions, and they have joint Conferences of the Parties.
The overarching objective of the Basel Convention is to protect human health and the environment from the adverse effects of hazardous waste, through the reduction of hazardous waste and sound management of their disposal. The Rotterdam Convention provides a legally binding framework for information exchange and informed decision-making in the trade of certain hazardous pesticides and industrial chemicals. The Stockholm Convention aims to protect human health and the environment from highly dangerous, long-lasting chemicals (persistent organic pollutants or POPs) by restricting and ultimately eliminating their production, use, trade, release and storage.
The Meeting of the Parties to the BRS Conventions in 2019 brought positive developments in relation to plastic waste. Amendments to the Basel Convention’s annexes enhance the control of the transboundary movements of plastic waste and clarify the scope of the Convention as it applies to plastic waste. The Parties noted the importance and urgency of the problem of plastic waste and decided to take immediate action with regards to the minimization/prevention of plastic waste. They emphasized the need to adopt a life-cycle approach, to reduce the risk from hazardous constituents, and to review the listing the categories of wastes to be controlled list of hazardous characteristics by the expert group.
The second category of international legal instruments relevant to plastic pollution consists of binding and voluntary international instruments relating to marine activities.
Sea-based activities such as marine litter by dumping from ships and lost and discarded fishing gear, a major cause of entanglement of marine wildlife, represent a non-negligible 20% of global marine plastic pollution. The most comprehensive treaty in this field is the UN Convention on the Law of the Sea (UNCLOS), which requires parties to adopt regulations and laws to control pollution from ships as well as land-based marine pollution. Other instruments include the International Convention for the Prevention of Pollution from Ships (MARPOL) that was adopted at International Maritime Organization (IMO) with the aim to prevent pollution from ships caused by operational or accidental causes. Its Annex V addresses ocean-based litter pollution and prohibits the discharge of all plastics from ships. The London Convention Protocol to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (the London Convention) includes guidance on the application of the polluter pays principle for addressing marine litter.
In addition, several ‘soft law’ (i.e. non-legally binding) instruments support the Parties implementing their treaty obligations and voluntary commitments by recommending concrete measures and actions to reduce and manage waste entering the oceans. Of particular significance is the Global Partnership on Marine Litter (2012) (GPML) which main focus is the reduction of marine litter. Recommended actions include phasing out microbeads and single use plastics, and the adoption of marine litter action plans. The Honolulu Strategy (2011), also developed under the GPA is remarkable in that it focuses on a global collaborative effort and draws on polluter pays and extended producer responsibility (EPR) principles to define a set of policy goals and strategies and to support best practices.
Despite their merits, it has become apparent that the law and policy regional and global frameworks governing plastics have failed to curb the escalation of marine plastic pollution, and that there was a need to assess and address the causes of their lack of effectiveness.
Toward a new global legal regime for plastics
In 2017, UNEP conducted an assessment of the effectiveness of international and regional governance, strategies and approaches to combat marine plastic litter and microplastics, which concluded that “current governance strategies and approaches provide a fragmented approach that does not adequately address marine plastic litter and microplastics”. The above rapid overview of the international legal and policy architecture governing plastic is sufficient to understand the basis of UNEP’s diagnosis. With regards to fragmentation, it is clear that discreet instruments address different types of hazardous wastes and different phases of their life cycle, while others regulate activities at sea. This fragmented framework is conducive to overlaps and gaps, which are reflected in regional instruments and at national level with the responsibility for the implementation of international and regional obligations and commitments falling on different ministerial portfolios. Another shortcoming of the current global (as well as regional) regime is the focus on waste - littering prevention and waste management-, at the end of the plastics life cycle. It does not promote the prioritization the prevention of plastic waste or the rethinking/redesign of products as would dictate the application of the Zero Waste Hierarchy (see diagram below), nor the shift to a circular economy of products.
There is currently no legally binding instrument in force that can provide the basis for a coherent global governance of plastics and plastic pollution. The plastics issue is fast turning into a plastic crisis. However, there is some hope for change on the UN horizon.
A growing momentum in support of an international legally binding instrument on the prevention of plastic and microplastics pollution
Improving the regulatory framework to reduce the impacts on the marine environment of land-based activities has been of concern to the United Nations Environment Program (UNEP) for over 25 years and resulted in the adoption of the Global Program of Action in 1995. Almost 20 years later, at the 2014 inaugural meeting of the United Nations Environment Assembly (UNEA) plastic pollution was singled out on the UN agenda.
Following the UNEP Assessment of the governance of plastics and microplastics report, UNEP created in 2018 the Ad Hoc Open Ended Expert Group on Marine Litter and Microplastics (AHEG), a multistakeholder body of member states, industry representatives, and civil society experts. The purpose of AHEG is to document the extent of plastic pollution and its impacts, and to inform governments on the best options to combat marine plastic litter and microplastics.
One of the key AHEG’s finding is the necessity to manage plastics sustainably through its full life cycle, rather than reducing it to a waste management issue. UNEA Resolution 4/6 stresses “the importance of more sustainable management of plastics throughout their lifecycle in order to increase sustainable consumption and production patterns, including but not limited to the circular economy”. This would entail a new focus on prevention, rethinking the design of products consistent with the zero waste hierarchy and a circular economy model, the adoption of Extended Producer Responsibility (EPR) and Container Deposit Scheme (CDS) legislation, in addition to improved waste management.
AHEG also highlighted the need for international coordination, cooperation and common commitments, prompting a growing number of countries to support the adoption of an international agreement. In the lead up to UNEA-5 meeting, now delayed to February 2022 a number of regional declarations have been adopted in 2019 calling for global action and a global agreement to combat plastic pollution. In April, the countries of the Nordic region adopted the Nordic Ministerial Declaration on Plastic marine litter and microplastics calling for the development of a global agreement; in April the countries of the ASEAN region adopted the Bangkok Declaration and Framework of Action on Combating Marine Debris seeking to enhance regional and international cooperation to address marine debris. In July, the countries of the Caribbean adopted the St. John’s Declaration calling for a global agreement, and in August the Pacific Islands’ leaders supported the development of a global legal framework through the Kainaki II Declaration’s endorsement of the Pacific Regional Action Plan 2018-2025. In November, the African Ministerial Conference on the Environment (AMCAL) adopted the ‘Durban Declaration on taking action for environmental sustainability and prosperity in Africa’ committing to supporting global action to address plastic pollution, including considering the option of a new global agreement on plastic pollution that takes a comprehensive approach to addressing the full life cycle of plastics (...). In March of this year, Europe committed to “building on the European Plastics Strategy, lead efforts at international level to reach a global agreement on plastics” in the European Union Circular Economy Action Plan. In addition to these regional commitments, 55 countries joined the Group of Friends to Combat Marine Plastic Pollution launched on World Ocean Day in June 2020 in New York, to support the process of exploring global response options, including a new global agreement that will address marine plastic pollution on a systemic level.
An ILBI on plastics and plastic pollution appears to many experts be the most effective way to achieve AHEG’s recommendations and provide the coherent legal architecture required to ‘turn off the plastics tap’ and support a shift from the current ‘use and throw’ linear consumption pattern to a circular economy model where the use of virgin materials is reduced and the development of sustainable products that are designed in a way that maximises sustainable use of resources, reuse, repair and recycling.
Such an instrument could enable mandatory global sustainability standards and extended producer responsibility, monitoring and reporting provisions, institutional arrangements, regulatory and market-based mechanisms, common targets and action plans, as well as technical and financial resources made available in priority to the countries most impacted and less resourced, such as the Pacific islands.
Increasingly the business sector sees the benefits from the certainty stemming from a coherent, universal and mandatory global legal regime for plastics. As reported in a recent by a WWF, the Ellen MacArthur Foundation and Boston Consulting Group joint report, The Business Case for a UN Treaty on Plastic Pollution, twenty-nine major businesses – and growing - have signed a manifesto, stressing the urgency of the issue and calling for the start of negotiations on a new global treaty.
The building blocks for an ILBI to prevent plastic pollution are beginning to be defined, with NGOs and state actors contributing to the process. Recent publications include the Environmental Investigation Agency (EIA) Islands of Opportunity: Towards a Global Agreement on Plastic Pollution for Pacific Island Countries and Territories, as well as ‘Towards a New Global Agreement to Address Plastic Pollution’, a report outlining a proposed structure for a global agreement including the essential elements and framework for its operation. WWF has been very active in the field with a number of publications including ‘Tackling Marine Plastic Pollution – It is time to begin negotiations on a new globally binding legal agreement’ Policy paper. The Centre for International Environmental Law (CIEL) Plastic Law and Policy webpage also features a wealth of research and publications. Most recently, the Nordic Council of Ministers has launched a report on the Possible Elements of a Global Agreement.
Ensuring that the Pacific islands’ regional and national priorities and interests are integrated in the global legal regime for plastic pollution prevention
The Pacific islands have the most to lose from the impacts of plastic pollution, and the most to gain from an international plastic legal regime that effectively protects the Pacific islands’ ocean, environment, livelihoods, culture, health and economy. It may prove a decisive diplomatic influence in the determination of the future global plastic governance legal regime, as it has been in the climate change negotiations, - with Fiji presiding over COP23 -, and the adoption of stand-alone oceans sustainable development goal (SDG14).
Plastic pollution has been an area of focus of the Pacific Islands Forum (PIF) since at the 48th PIF leaders’ meeting 2017 in Samoa with the Pacific islands committing to fast-track the ban of single-use plastic bags, plastic packaging, calling on the Pacific Rim countries to follow suit. At the second meeting of the Clean Pacific Roundtable (Suva, 2018), a regional platform for collaboration on waste management Dame Meg Taylor – PIF Secretary General – noted the region-wide call for urgent action on plastics, marine pollution and marine debris, and its potential to be a catalyst for similar global action. The 50th PIF Leaders’ meeting in Tuvalu in 2019 highlighted the importance of the Pacific Regional Action Plan on Marine Litter 2018-2025 and leaders’ Joint Communiqué called upon the Pacific Rim nations to join the action. The Kainaki II Declaration for Urgent Climate Change Action Now adopted at that meeting declares that ‘We [the leaders of the Pacific Islands Forum] are working to protect our ocean from harmful plastics through our Pacific Regional Action Plan on Marine Litter 2018-2025 and call on Pacific Rim countries to join and commit to action on addressing marine pollution and marine debris”. As noted earlier, the Marine Litter Action Plan calls for the Pacific islands to “Support the development of a global legal framework to address marine litter”.
Further development of a Pacific islands common position on plastics’ global governance regime has been hampered by the pandemic and the ensuing cancellation of the Pacific Islands Forum Leaders Meeting along with many other regional and international events this year. Nonetheless, some regional consultations and events have taken place virtually in the lead to the UNEA-5 meeting, with some Pacific island countries’ representatives, including Fiji, Tuvalu, Palau, Tonga and others expressing their support for an ILBI. One of these events was the webinar held in August by EIA and CIEL in partnership with WWF Pacific and Massey University, and in collaboration with SPREP, to facilitate regional discussions and the definition of a common position on plastics and plastic pollution. The region is currently in the process of strategizing its regional plastic diplomacy with discussions on a Pacific islands’ statement or declaration in support of a global response to plastic pollution, including the option of a legally binding agreement on plastics and plastic pollution.
Upcoming events, such as the 10th Pacific Islands Conference on Nature Conservation and Protected Areas held virtually on 24-27 November and featuring a session on marine plastic pollution entitled ‘Turning the tide: Preventing plastic pollution in Pacific Island Countries and Territories’, or other events which will be held in the region in 2021 may provide the platform for the Pacific islands to further advance the regional discussions and the adoption of a regional statement or declaration on the global governance of plastic pollution, including formal support for an ILBI. Such position statement will ensure that the region’s voice is heard and its priorities and needs reflected in the new global plastics legal regime that will be defined at UNEA-5 in February 2022.
[1] A comprehensive review and gap analysis of current legislation, policies and plans relating to plastic pollution prevention in the Pacific was conducted by the Environmental Investigation Agency (EIA) and is available at this link.
Disclaimer: This legal bulletin is published for general information purposes only and is not, and should relied upon as, legal advice.