Latest Expedition Journal
November 4: Day 33
SEA Plastics Expedition: Legal Style
By Hannah Roth (SEA class S-195) and Molly Madden (SEA class W-137)
As most of us following this website know, plastics in the oceans present numerous environmental problems. When we were students at SEA, two strategies were emphasized as key tools for improving the ocean environment: scientific research to define the impact of plastic pollution, and individual action aimed at reducing it. While these tools are indeed important, keep in mind that another tool also is available: international and domestic law.
The ocean, as well as marine pollution originating from land-based sources, is governed by legal frameworks created at the international, national, state, and local levels. The oceans are a global commons shared by everyone in the world. Multilateral and bilateral treaties and other agreements exist for fish management, shipping, and protecting biodiversity. The multilateral (multi-national) treaty that concerns us in this blog post is the International Convention for the Prevention of Pollution from Ships, commonly known as MARPOL, which bans the discharge of any plastic into the ocean.
MARPOL is a comprehensive treaty that regulates aspects of the world’s shipping industry, specifically pollution from ships. Six “Annexes” comprise MARPOL and set out regulations for different aspects of pollution from ships. Annex V governs garbage and specifically bans discharge of plastic from ships. Over 130 countries have signed onto Annex V’s legal obligations and therefore are called parties to Annex V. These countries agree to adhere to and domestically enforce Annex V’s garbage regulations and the ban on plastics.
Those of us who have sailed with SEA know about this regulation first hand. Even if we didn’t realize it at the time, we were keeping our plastic on board, in part, because throwing it into the ocean would have violated MARPOL.
However, a treaty is only effective if the nations that have signed onto it help enforce its provisions. MARPOL creates obligations for both flag states (that is, the country that certified the vessel, from which the vessel launched, or under which the vessel sails) and port states (which is any place a vessel lands). Both flag states and port states may inspect vessels to make sure they are in compliance with the treaty’s terms and can impose sanctions if the vessel is in violation of the terms. In the U.S., the Coast Guard has the primary responsibility for enforcing Annex V’s obligations.
While ships are one source of plastic in the ocean, one study suggests that 80% of plastic in the ocean is from land-based sources. Even though determining just how much plastic comes from where is very difficult, this statistic, along with other research, suggests that we will not be able to fully address the problem of plastic in the ocean unless we control land-based sources.
Like marine-based sources of plastic pollution, land-based sources can be regulated by all levels of government. The United Nations Convention on the Law of the Sea (UNCLOS) is an international treaty that covers many aspects of ocean governance and includes obligations for signatories to control land-based sources of pollution. In addition to UNCLOS, regional treaties and domestic laws attempt to control land-based pollution.
For example, the Cartagena Convention’s Protocol Concerning Pollution from Land-Based Sources and Activities seeks to prevent solid waste from moving from land into the Caribbean Ocean. The terms of this Protocol, or treaty, include preventing “persistent synthetic and other materials,” including garbage, from harming the ocean. A number of countries in the wider Caribbean, including the United States, are parties to this treaty. Treaties like this provide both a legally enforceable framework and a forum in which the countries can come together to exchange best practices and voluntary approaches to combat this pollution.
In the U.S., domestic laws such as the Clean Water Act seek to control land-based sources of plastic pollution. For example, Section 303 of the Clean Water Act authorizes states to identify impaired waters and calculate limits on the level of different types of pollution, such as garbage, that can enter the impaired water. These limits are Total Maximum Daily Loads (TMDLs).
In 2007, California created a garbage TMDL for the Los Angeles River in an attempt to reduce the amount of garbage entering that river, which, in turn, would reduce the amount of garbage entering the Pacific Ocean. So far, the state focuses on preventing garbage from entering the sewer systems in the cities located within the river’s watershed, because those sewers lead to the Los Angeles River. To keep garbage out of the sewers, the state is educating the public about proper garbage disposal, regularly cleaning the streets, and providing public garbage cans. In addition, the state is removing garbage that enters the sewers by using devices that trap particles larger than 5 mm, essentially sieving out much of the garbage from the sewers before it can reach the river.
The effectiveness of the complex web of international, national, and local regulations that aim to reduce pollution in the oceans can only be measured through continual monitoring. This SEA expedition helps contribute to our understanding of how well our pollution prevention efforts are working. Ultimately, an intricate framework of laws can be used to prevent plastics from entering the ocean, but without scientific research, it is hard to quantify the impact of that framework.
To learn more, check out these links:
Solid waste and litter in the Caribbean: http://www.cep.unep.org/publications-and-resources/marine-and-coastal-issues-links/solid-waste-and-marine-litter
EPA Marine Debris Prevention Page: http://water.epa.gov/type/oceb/marinedebris/index.cfm
About the authors:
Hannah and Molly met as summer law clerks for the International Section of NOAA's Office of General Counsel and instantly bonded over their shared SEA histories. They both continue to work for the federal government, Hannah for the United States Court of Appeals for the Second Circuit and Molly for the Bureau of Safety and Environmental Enforcement.