2.6.1 Ocean-Based Renewable Energy

While recognizing that most emission reductions must happen from deep decarbonization of terrestrial activities, ocean-based activities can and should be included in the NDCs of parties to the Paris Agreement. While some parties have already included some marine activities and policies, more could follow suit with the next round of NDCs in 2025.

NDCs can play a critical role in supporting acceleration of renewable energy by sending clear, consistent signals to the private sector. Importantly, however, NDCs are to be implemented through effective domestic planning and regulatory as well as enforcement measures. By including ocean-based solutions in NDCs, greater legal and regulatory machinery will be set in motion. Also, reporting on the implementation and achievement of NDCs is mandatory under the Paris Agreement,Footnote ²⁹ and all reports are subject to an independent technical expert review. NDCs can further help to stimulate further investment, research and development for less mature technologies such as tidal, current and geothermal energy.

A recent report by the World Research Institute suggests several options for including ocean-based renewable energy in new or updated NDCs, such as:

• Expanding and increasing the ambition of existing economy-wide GHG targets by including emission reductions from ocean-based renewable energy production.

• Defining capacity and generation targets for ocean-based renewable energy (e.g., offshore wind within Exclusive Economic Zones (EEZ), and tidal and wave energy). Such targets could be expressed as absolute quantities, as a percentage increase from current levels or as a share of the total energy or electricity mix.

• Committing to developing inclusive national marine spatial planning frameworks and integrated ocean management to map ocean-based activities and area-based management tools. This will help identify opportunities for expanding offshore renewable energy that balances the needs of other ocean users and sustainability of coastal and marine ecosystems.

• Committing to research and development to explore opportunities to align ocean-based renewable energy with efforts to decarbonize marine transport and aquaculture and support coastal and marine ecosystems.Footnote ³⁰

Further examples might also include fixed and floating offshore wind and solar installations and ocean thermal energy conversion installations. This would help in addressing the significant gap between the aggregate effect of parties’ mitigation efforts and the emissions pathway needed to hold temperature increases to well below 2^oC above pre-industrial levels and in pursuing efforts to limit temperature increases to 1.5^oC.Footnote ³¹ Moreover, parties to the Paris Agreement are expected to reflect their highest possible ambition in their NDCFootnote ³² – a due diligence requirement, which means taking all appropriate measures, which for many coastal states would include ocean-based activities.

2.6.2 Decarbonizing Ocean-Based Transport

Decarbonization of ocean transport is another way by which ocean-related aspects might contribute to climate solutions. Ocean transport currently makes up about 3 per cent of global GHG emissions, with a rising trend.Footnote ³³ Increased energy efficiency, maximizing the overall operational efficiency of new and existing ships and promoting or prescribing low and zero carbon fuels could mitigate this contribution. International work through the International Maritime Organization and regional organizations might be necessary, which should also increase possibilities for enforcement of norms.

Additionally, the inclusion of ocean transport in parties’ NDCs could be an effective way forward. This might involve, for example, setting a specific GHG target for domestic shipping and domestic fleets; aiming to phase out GHG emissions from coastal passenger transport through technology transfer and research and development in battery- and wind-powered ferries; developing cross-sectoral decarbonization plans that link strategies to transition land-based energy sources and supply chains with ports and marine fleets; or financing technology transfer and research and development for the transition to zero-emission passenger and freight transport.Footnote ³⁴

2.6.3 Coastal and Marine Ecosystem Protection

Protecting coastal and marine ecosystems is necessary to maintain and enhance the CO2 and reservoir capacities of oceans. This might include enhancing protection measures for mangroves, kelp forests, seaweed beds under the CBD and other legal instruments, and inclusion of such ‘marine-based natural solutions’ as a nature-based solution in parties’ NDCs.Footnote ³⁵

Moreover, providing incentives for ‘blue carbon’ similar to ‘green carbon’ under REDD+ could be a necessary tool to engage more States in ocean-based natural protection for climate purposes. This might require enhancing carbon accounting for mangroves, sea grass and seaweed or kelp forests and other ocean sinks within national GHG Inventories, and the improvement of monitoring technologies and capacities for ‘blue carbon’ (under the UNFCCC and Paris Agreement).Footnote ³⁶

National and global mapping of blue carbon ecosystems (especially seaweed) and development of legal mechanisms for long-term preservation of blue carbon are significant steps that are necessary in order to include the conservation and enhancement of ocean sinks and reservoirs in the scope of nature-based solutions in NDCs.

2.6.4 Management of Fisheries and Aquaculture

Another important aspect is elimination of harmful subsidiesFootnote ³⁷ and strengthening of tools to eliminate illegal, unreported and unregulated (IUU) fishing.Footnote ³⁸ The climate challenge is significant and the role of oceans as the real ‘lungs of the Earth’ is crucial in maintaining a carbon balance. This understanding, while backed up by science, is only slowly moving into political decisions and appropriate legal responses.

One principal way in which ocean-based foods can contribute significantly to climate change mitigation is in reduction of the carbon footprint of ocean-derived food production, especially fisheries. For example, changing fuel sources in vessels and technological advances in production techniques can alter the emissions associated with seafood from both fisheries and ocean-based aquaculture. However, reducing emissions by improving fish catch efficiency as well as increasing fishery yields will require significant governance changes, including design of appropriate international and regional legal frameworks. In this context, existing tools within the international framework to address IUU fishing should be strengthened and streamlined into a global framework.Footnote ³⁹

3.4.1 Pollution of the Marine Environment

Article 1(1)(4) of the Convention defines ‘pollution of the marine environment’ as:

The UNCLOS definition of marine pollution is a wide and comprehensive one that is subject to evolutionary interpretation.Footnote ²⁴ By design, it ‘provides an open definition on marine pollution which may include all sources of marine pollution in the present and future’.Footnote ²⁵

Considering that the definition encompasses the introduction of both ‘substances’ and ‘energy’ into the marine environment, it is difficult to argue in good faith that GHG emissions from shipping do not constitute ‘pollution of the marine environment’. The warming of the oceans introduces ‘energy’ into the marine environment that results or is likely to result in deleterious effects. The introduction of CO₂ into the water column results in deleterious effects through ocean acidification. Given all this, Bodansky finds no difficulty in concluding that ‘emissions from maritime shipping clearly constitute “pollution of the marine environment” within the meaning of Article 1.1(4)’,Footnote ²⁶ and similar views have been expressed by other authors.Footnote ²⁷ Since GHG emissions therefore amount to ‘pollution of the marine environment’, the question that must be answered next is: which precise provisions of the Convention are engaged by GHG emissions and what are the implications of these provisions in practice?

3.4.2 General Provisions: Articles 192 and 194

Article 192 establishes a general obligation on all States to protect and preserve the marine environment. As noted in the South China Sea arbitration, ‘the content of the general obligation in Article 192 is further detailed in the subsequent provisions of Part XII … as well as by reference to specific obligations set out in other international agreements’.Footnote ²⁸ On this basis, in the South China Sea arbitration, the arbitral tribunal integrated the definition of ‘ecosystem’ from the Convention on Biological DiversityFootnote ²⁹ as well as aspects of the CITES ConventionFootnote ³⁰ into its reasoning, enabling it to reach the conclusion that ‘Article 192 includes a due diligence obligation to prevent the harvesting of species that are recognised internationally as being at risk of extinction and requiring international protection’.Footnote ³¹ In a similar manner, it is submitted that Article 192 serves to bring the UN Climate Change Regime into the scope of UNCLOS and that the Paris Agreement effectively sets the standard for giving effect to Article 192 insofar as State obligations in the context of climate change are concerned.Footnote ³² This is in line with the principle of systemic integration enshrined in Article 31(3)(c) of the Vienna Convention on the Law of Treaties (VCLT).Footnote ³³ According to Article 31(3)(c), in interpreting a treaty, together with the context, account shall be taken of ‘any relevant rules of international law applicable in the relations between the parties’.Footnote ³⁴ As Bowman observes, what systemic integration requires is that ‘interpretation of each individual provision … be woven into the broader fabric not only of the treaty as a whole, but of the wider legal system’.Footnote ³⁵

The nature of the Article 192 obligation to protect and preserve the marine environment as a due diligence obligation can have important ramifications in the context of tackling GHG emissions from shipping. As affirmed in the Responsibilities in the Area opinion, the concept of due diligence can ‘change over time as measures considered sufficiently diligent at a certain moment may become not diligent enough in light, for instance, of new scientific or technological knowledge’.Footnote ³⁶ Paragraph 7 of the IMO GHG Strategy establishes an obligation for the Strategy to be revised every five years after its final adoption in 2023. Re-assessment should not be restricted to aspects of the Strategy such as short, medium and long-term measures but should include careful consideration of all the relevant elements, including the all-important levels of ambition. These should be re-evaluated considering the latest scientific and technical knowledge available and maintained in line with the global effort under the Paris Agreement to keep temperature increases to within 1.5 per cent of pre-industrial levels.

Article 194(1) obliges States to take all measures necessary to prevent, reduce and control pollution of the marine environment from any source. As Boyle notes, although Article 194 makes no express reference to GHG emissions, ‘it is entirely possible to read Article 194(3) as covering atmospheric depositions of CO₂ resulting in marine pollution’.Footnote ³⁷ Atmospheric pollution is mentioned specifically in Article 194(3)(a), which provides that measures taken pursuant to Part XII must include measures designed to minimise to the fullest extent possible ‘the release of toxic, harmful or noxious substances, especially those which are persistent, from land-based sources, from or through the atmosphere or by dumping’.Footnote ³⁸ Article 194(3)(b) then tackles vessel-source pollution specifically by requiring that measures taken pursuant to Part XII must include measures designed to minimise to the fullest extent possible pollution from vessels.Footnote ³⁹

3.4.3 More Specific Provisions: Articles 211 and 212

Article 211 expands on the obligation contained in Article 194(3)(b) and addresses both national and international law-making. Insofar as international law-making is concerned, Article 211(1) provides that ‘States, acting through the competent international organization or general diplomatic conference, shall establish international rules and standards to prevent, reduce and control pollution of the marine environment from vessels’.Footnote ⁴⁰ Article 211(1) requires that ‘[s]uch rules and standards … be re-examined from time to time as necessary’. The obligation to re-examine rules is an important one that complements the construal of Article 192 in the preceding section as an obligation of due diligence. Article 211(2) deals with national law-making and provides that:

Article 211(2) establishes an important prescriptive obligation in relation to flag States. Given the phrasing of Article 211(2), a crucial question is whether the Regulations on Energy Efficiency for Ships that are contained in MARPOL Annex VI Chapter 4 can be considered as Generally Accepted International Rules and Standards (GAIRS). A problem with MARPOL Annex VI Chapter 4 is that the relevant amending resolution in terms of which Chapter 4 was added to Annex VI was not adopted by consensus, as is typically the case with IMO decisions, but by a vote in which forty-nine out of fifty-nine MARPOL State parties at the time voted in favour, but Brazil, Chile, China, Kuwait and Saudi Arabia voted against.Footnote ⁴² The fact that five States with a significant number of ships in their registries voted against gives Harrison reason to believe that the relevant Regulations ‘may not qualify as being generally accepted for the purposes of Article 211(2)’.Footnote ⁴³ This may have been true at the time of adoption but, as has been noted in other contexts, the fact that a number of States at some point opposed a given measure does not disqualify the same measure from becoming generally accepted at a later point.Footnote ⁴⁴ All those States that opposed the adoption of Chapter 4 eventually ratified Annex VI,Footnote ⁴⁵ and, as of October 2019, MARPOL Annex VI has ninety-five contracting parties representing 96.71 per cent of world tonnage between them.Footnote ⁴⁶ It is therefore submitted that the energy efficiency regulations contained in MARPOL Annex VI Chapter 4 can be considered as GAIRS for the purpose of Article 211(2). Whether it will be possible to state the same for future rules on GHG emissions from shipping will largely depend on the circumstances of their adoption.

While Article 211(2) establishes a prescriptive obligation for flag States, Article 217 establishes a corresponding obligation of enforcement: ‘States shall ensure compliance by vessels flying their flag or of their registry with applicable international rules and standards, established through the competent international organization or general diplomatic conference, and with their laws and regulations adopted in accordance with this Convention for the prevention, reduction and control of pollution of the marine environment from vessels …’Footnote ⁴⁷

Article 212(3) requires States to ‘endeavour to establish global and regional rules, standards and recommended practices and procedures to prevent, reduce and control [atmospheric] pollution’.Footnote ⁴⁸ Insofar as atmospheric pollution from ships in particular is concerned, UNCLOS State parties have fulfilled this responsibility through the adoption of MARPOL Annex VI. In relation to national law-making, Article 212(1) requires States to: ‘adopt laws and regulations to prevent, reduce and control pollution of the marine environment from or through the atmosphere, applicable to the air space under their sovereignty and to vessels flying their flag or vessels or aircraft of their registry, taking into account internationally agreed rules, standards and recommended practices and procedures’.Footnote ⁴⁹

Two main distinctions exist between Article 211(2) and Article 212(1). First, Article 212(1) refers not to GAIRS but to ‘internationally agreed rules, standards and recommended practices and procedures’.Footnote ⁵⁰ This means that ‘Article 212(1) does not require a rule or standard to be “generally accepted” before it is relevant’.Footnote ⁵¹ Second, unlike Article 211(2), which requires flag States to adopt laws and regulations that ‘shall at least have the same effect as that of generally accepted international rules and standards’, Article 212(1) requires States to ‘tak[e] into account internationally agreed rules, standards and recommended practices and procedures’. As a result, ‘States are free to adopt less or more stringent national instruments under this reference’.Footnote ⁵² As argued above, there can be little doubt today that the rules contained in MARPOL Annex VI Chapter 4 are generally accepted. That said, it is not entirely possible to exclude the possibility of such doubts resurfacing in relation to future rules, especially if the IMO will once again have to resort to majority voting. In such an eventuality, Article 212 will ensure that States are obliged to ‘tak[e] into account internationally agreed rules, standards and recommended practices and procedures’, at least until clarity can be obtained about whether the relevant rules can be considered as GAIRS under Article 211(2).

Article 222 requires States to ‘enforce, within the air space under their sovereignty or with regard to vessels flying their flag or vessels or aircraft of their registry, their laws and regulations adopted in accordance with article 212, paragraph 1 …’Footnote ⁵³

3.4.4 Prescriptive and Enforcement Jurisdiction

The forthcoming sub-sections analyse the jurisdiction and obligations pertaining to flag, coastal and port States under UNCLOS in regard to GHG emissions from ships.

4.2.1 Fragmented Nature of International Instruments

No international treaty has the primary objective of preventing and regulating marine plastics pollution. The United Nations Convention on the Law of the Sea (UNCLOS)Footnote ⁷ provides an overarching legal framework regulating all activities in the oceans. In addition to a general obligation under Article 192 to protect the marine environment, Article 194 requires States to take all measures to prevent, reduce and control pollution of the marine environment. UNCLOS also regulates specific sources that have caused pollution, such as land-based sources,Footnote ⁸ dumpingFootnote ⁹ and vessels.Footnote ¹⁰ However, UNCLOS does not provide detailed regulations on prevention of marine plastic litter and microplastics.

A wide range of legal instruments address issues relating to marine plastics. First, various treaties regulate different sources of marine plastics. For land-based sources, which are responsible for 80 per cent of the plastics disposed of in the oceans, UNCLOS remains the only binding treaty that regulates them in these terms.Footnote ¹¹ Although Article 207 of UNCLOS is of particular importance, it allows States wide discretion in regulating land-based pollution to reconcile national economic interests and protection of the marine environment from land-based sources.Footnote ¹² The Global Programme of Action for Protection of the Marine Environment from Land-based Activities (GPA), which is not legally binding, provides guidance on taking action to prevent land-based sources of pollution. In 2012, UNEP introduced the ‘Honolulu Strategy: a Global Framework for Prevention and Management of Marine Debris’ to support implementation of the GPA by a set of goals and strategies.

Sea-based sources that generate marine plastic litter and microplastics by fishing, dumping and shipping should also be regulated. The United Nations Agreement for Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (UNFSA)Footnote ¹³ regulates abandoned, lost or otherwise discarded fishing gear, which forms a significant component of sea-based sources of marine plastics pollution. It requires States to minimise waste, discards and catch by lost or abandoned gear through taking appropriate measures.Footnote ¹⁴ In addition, the 1972 Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other MatterFootnote ¹⁵ and its 1996 ProtocolFootnote ¹⁶ regulates and strengthens the obligation to prohibit dumping under Article 210 of UNCLOS. The International Convention for the Prevention of Pollution from Ships (MARPOL),Footnote ¹⁷ which regulates ship-based sources of pollution, is linked to the obligation under Article 211 of UNCLOS. In particular, Annex V on the prevention of pollution by garbage from ships prohibits all kinds of discharges into the sea, including plastics. Such plastic wastes include ‘synthetic ropes, synthetic fishing nets, plastic garbage bags and incinerator ashes from plastic products’.Footnote ¹⁸

Second, treaties regulating the impact of marine plastics on biodiversity and species include the Convention on Biological Diversity (CBD)Footnote ¹⁹ and the Convention on the Conservation of Migratory Species of Wild Animals (CMS).Footnote ²⁰ Each conference of parties has adopted a series of decisions relating to the management of marine debris. These decisions are non-legally binding, but they contribute to identifying knowledge gaps regarding the impacts of marine plastics on biodiversity and to developing best practices that States can apply.Footnote ²¹

Third, with regard to hazardous wastes, the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal (Basel Convention)Footnote ²² and the Stockholm Convention on Persistent Organic Pollutants (Stockholm Convention)Footnote ²³ should be considered. The Basel Convention requires States to reduce hazardous waste generation, undertake environmentally sound management of hazardous wastes and restrict transboundary movements of hazardous wastes.Footnote ²⁴ In 2019, the COP to the Basel Convention adopted a decision on the plastic waste amendment, which is notable progress in regulation of marine plastic waste.Footnote ²⁵ The amendment has expanded the scope of ‘hazardous waste’ (Annex VIII) and ‘other waste’ (Annex II) so that most plastic wastes are subject to the Basel Convention. The amendment entered into force on 1 January 2021. Norway, which initially proposed the amendment, explains that the amendment will result in ‘less marine plastic litter, increased traceability, more control and less illegal dumping of plastic waste’.Footnote ²⁶ States should minimise generation of plastic waste and manage it in an environmentally sound manner.Footnote ²⁷ Although the amendment to the Basel Convention expanded the scope to encompass regulation of plastic wastes, it has been argued that there are still gaps, such as lack of national targets, relating to reducing the quantity of plastic waste in addition to no compliance system.Footnote ²⁸ The plastic waste amendment does, nevertheless, represent notable progress in regulation of marine plastics pollution.Footnote ²⁹ Indeed, the Stockholm Convention regulates plastics containing or adsorbing persistent organic pollutants that pose a hazard to marine ecosystems and humans.

Moreover, a regional legal framework provides an additional layer of regulation of marine plastic pollution. UNCLOS highlights the importance of regional cooperation in regulating pollution from land-based sources, which account for more than 80 per cent of marine plastic pollution.Footnote ³⁰ The UNEP Regional Seas Programmes for the protection of the marine environment contribute to facilitating effective implementation of obligations, taking into account regional characteristics. Several regions have adopted regional seas conventions and legally binding instruments on different sources of pollution, such as land-based sources in the form of an annex or protocol.Footnote ³¹ In addition, some regions have adopted Action Plans on marine litter, recognising marine plastics as the main sources.Footnote ³² Although Action Plans are usually non-legally binding instruments – except the Regional Plan on Marine Litter Management in the Mediterranean – they demonstrate member States’ consensus on regional priorities, develop best practices and promote compliance with international obligations.

However, despite a plethora of international instruments to regulate marine plastics pollution, they provide only limited obligations within their mandate. Not all regions have binding regional instruments relating to marine plastic litter and microplastics. In this regard, it has been argued that the current international instruments are ‘rather patchy and subject to prudentially competing norms of behaviour’.Footnote ³³ Fragmentation undermines legal certainty and reliable application of the laws in question.Footnote ³⁴ It prevents effective implementation of relevant treaties, so resulting in weakening the rule of law.

4.2.2 Lack of Consideration of the Lifecycle of Plastics

The current legal framework on marine plastics pollution still does not provide a holistic approach governing all the lifecycle phases of plastics. The approach focusing on waste management will not be able to prevent generation of plastics, especially since the use of plastics causes significant negative environmental impacts on the marine environment at each stage of the plastics lifecycle.Footnote ³⁵ On the other hand, a lifecycle approach of plastics seeks sustainable solutions based on the entire lifecycle of plastics rather than focusing on waste management at the end of their life. Therefore, the need is to take a lifecycle approach. This suggests adopting measures from the early phases of plastic production, such as a sustainable design for reuse, recycling or composting, and reducing the use of harmful substances to the end-of-life phase.Footnote ³⁶ This is closely linked to a circular economy for plastics, which represents a shift from waste management to resource management.Footnote ³⁷

There are a few instruments regulating the entire lifecycle of plastics, including upstream activities, such as manufacturing, materials used and product design.Footnote ³⁸ For example, CBD guidance covers the full lifecycle of plastic pollution, addressing production design, limiting consumption of plastic, promoting recycling and best practices along with the whole of plastics manufacturing. The COP of the Basel Convention discusses updating Technical Guidelines for the Identification and Environmentally Sound Management of Plastic Wastes and for Their Disposal to reflect the entire lifecycle of plastic wastes. It recognises that ‘waste prevention or reduction involves both upstream alterations in product design, including use of alternative materials or technologies … ’.Footnote ³⁹ It recommends measures at the early stages of plastic production, including adopting a sustainable design for reuse, recycling or composting, and reducing the use of harmful substances.Footnote ⁴⁰ Extended producer responsibility addressed in the technical guidelines is closely linked to a lifecycle approach as it promotes waste minimisation from product design through to disposal of plastics by allocating a significant responsibility to producers.Footnote ⁴¹ Although the guidelines do not impose obligations on States, they provide general guidance for developing national waste management strategies and best practices with respect to environmentally sound management of plastic waste.

There is increasing recognition of a lifecycle approach beyond the limit of waste management in tackling marine plastic pollution. It is interesting to note that UNEA Resolution 3/7 on marine plastic litter and microplastics highlights that ‘preventive action through waste minimization and environmentally sound waste management’ is the highest priority.Footnote ⁴² However, UNEA Resolution 4/6 moves forward from waste management by underlining ‘the importance of more sustainable management of plastics throughout their lifecycle in order to increase sustainable consumption and production patterns … ’.Footnote ⁴³ A lifecycle approach will contribute to minimising plastic waste generation, including microplastics, and reduce the use of hazardous substances through the entire plastics lifecycle, so as to closely link to the obligation to prevent under Article 192 of UNCLOS and to increase zero waste at the end-of-life phase of plastic.

4.3.1 Cooperation and Coordination between International Instruments

The fragmentation that exists between regulations remains an obstacle to tackling marine plastic litter and microplastics pollution. Cooperation and coordination between international instruments at the global level would help to reduce unnecessary overlap and duplication between existing regulations and improve implementation of legal instruments, consequently strengthening the rule of law. Since existing instruments often have overlapping objectives in terms of protecting the marine environment from marine plastic pollution within each sectoral interest, they are closely related to each other, and thus should be considered comprehensively and in a coordinated manner. The COP to the Basel Convention is a good example: it adopted guidance in collaboration with the IMO on how to improve the sea–land interface to ensure that waste offloaded from a ship, which previously fell within the scope of MARPOL, is managed in an environmentally sound manner.Footnote ⁴⁴

In this regard, UNEP, as ‘the entity providing secretariat functions’ for a number of multilateral environmental agreements, could be used as an overarching body to coordinate different institutions.Footnote ⁴⁵ UNEP is neither a superior institution with the authority to override decisions adopted by other institutions nor one that could impose legally binding decisions on States.Footnote ⁴⁶ Yet it could encourage inter-sectoral coordination for the effective development and implementation of regulations intended for prevention of marine plastics and microplastics pollution. The coordinating role of UNEP in regulating marine plastic pollution has been recognised in several instruments. For example, Decision 14/13 adopted by COP to the Basel Convention stresses ‘the importance of cooperation and coordination with other international organizations and activities through existing mechanisms, and in particular the multi-stakeholder platform within the UNEP’.Footnote ⁴⁷

4.3.2 Importance of Regional Cooperation

Regional conventions and action plans adopted in several regions are only applicable within a specific geographical scope. However, these could still serve as a significant platform to develop guidelines and best practices to prevent marine plastic pollution, taking into account its regional characteristics. The transboundary nature of plastic waste also requires a coordinated response across the regions. Inter-regional cooperation contributes to developing harmonised standards and promoting effective implementation at national levels.Footnote ⁴⁸ The Regional Plan on Marine Litter Management in the Mediterranean could be considered a good example. Although it aims to address marine litter in general, including both land-based and sea-based sources, it is also applicable to marine plastic waste. The binding nature of the plan includes self-determined national targets and timelines that States should meet, which are applicable to marine plastic waste and countervail the weakness of international instruments.Footnote ⁴⁹ It also requires regional cooperation by establishing institutional cooperation with various relevant regional institutions.Footnote ⁵⁰

Some action plans expand broad aspects of regulation of marine litter, reflecting the lifecycle of plastic. For example, the action plan in the Mediterranean region states that ‘the entire lifecycle of the product with measures prioritizing the hierarchy of waste management to encourage companies to design products with long durability for reuse, recycling and materials reduction in weight and toxicity’.Footnote ⁵¹ It includes an extensive producer responsibility strategy aiming at ensuring the entire lifecycle of the product and advocates establishment of manufacturing methodologies in cooperation with the plastics industry.Footnote ⁵² The OSPARFootnote ⁵³ Regional Action Plan also provides upstream measures, including development of design improvements in sustainable packaging and the phase-out of microplastics in certain industries.Footnote ⁵⁴ Considering that fishing gear is one of the major sources of marine plastic pollution, OSPAR adopted the Scoping Study on Best Practices for the Design and Recycling of Fishing Gear. This is consistent with a lifecycle approach as it addresses the design and recycling of fishing gear throughout the supply chain.Footnote ⁵⁵ Thus, these regional action plans indicate that they complement implementation of international obligations taking into account the lifecycle of plastics and promote consistent action at regional and national levels.

Moreover, a monitoring system under the UNEP Regional Seas Programme should be highlighted.Footnote ⁵⁶ This will contribute to monitoring compliance of international obligations by filling in the gaps in the data on marine plastics, such as the impact of marine plastics on regional seas, on plastic material flow and the quantity of marine plastic waste. It will assist in developing a global monitoring assessment on marine plastic pollution.Footnote ⁵⁷ Monitoring in regions where the largest number of marine plastics are discarded could also provide a scientific basis for enhancing efficient decision-making and subsequently taking concrete measures.

4.3.3 Engagement of Multi-Stakeholders

Multi-stakeholders play a significant role in achieving a lifecycle approach in a circular economy. In particular, the plastics industry can contribute to developing technical standards and certificates relating to, for instance, labelling, recyclability and biodegradability. Development of industry standards relating to production, consumption, recycling and the final treatment of plastic is crucial to promoting implementation at national, regional and global levels. Yet there are regulatory and technical challenges to be faced throughout the lifecycle of plastics. They include substitution with no alternatives (product design phase), chemical release from plastic products (use phase), difficulties of chemical risk assessment and emission of potentially toxic substances (end-of-life phase).Footnote ⁵⁸

Multi-stakeholder partnerships can fill regulatory gaps and assist in tackling these challenges. For example, the Global Partnership on Marine Litter is a multi-stakeholder partnership to facilitate international cooperation through implementation of the Honolulu Strategy.Footnote ⁵⁹ It serves as a global platform for multi-stakeholders that can contribute to information sharing, development of new technologies and capacity building. It provides a useful forum for discussing industry standards and developing harmonised best practices to be implemented in collaboration with private actors. Indeed, the Basel Convention recently established a new Partnership on Plastic Waste to promote environmentally sound management of plastic waste in cooperation with multi-stakeholders, including ‘governments, regional and local authorities, Regional Seas Programmes, intergovernmental organizations, private sector, non-governmental organizations and academia’.Footnote ⁶⁰ These partnerships can contribute to building synergies in collaboration with other international and regional organisations and the private sector.

Moreover, multi-stakeholder partnerships can play a significant role in enhancing the rule of law by providing opportunities for participation in salient law-making. They will be critical in decision-making and implementation of regulations and standards to achieve a circular economy for plastics. In this regard, whilst the international framework governing plastics should move towards a circular economy, cooperation with multi-stakeholders at multiple levels should be enhanced.

5.3.1 Thin National Laws

Three examples illustrate this ‘thin law approach. First, the United States as a major plastic producer has no national approach to reducing packaging sources that contribute to marine litter. While, on the one hand, persistent plastic that becomes waste could be characterized as hazardous waste under the Resource Conservation and Recovery Act (RCRA) depending on ecological toxicity associated with accumulated marine litter,Footnote ¹⁷ this law has never been applied consistently across industries to reduce mismanaged waste. For example, even though researchers in 2010 working in the Puget Sound region recovered 870 gillnets that had arguably become waste containing plastic filaments that entrapped thousands of fish, hundreds of birds and dozens of mammals, no attempt has been made to hold the fishing industry or fishing net manufacturers accountable for failing to manage a potentially dangerous waste material because this would have required the regulators or courts to be creative in applying the RCRA.Footnote ¹⁸ Nor are plastic beverage container manufacturers considered to be generators of waste for the purposes of the RCRA even though only minimal numbers of bottles are ever recycled. The RCRA law, despite setting national standards, is not ‘fit’ to address marine debris or the amassing of post-consumer plastics except to ensure that landfills are properly designed.

More specific attempts to address Marine Debris in US legislation fare no better in terms of delivering outcomes capable of addressing the scale of the challenge. The Marine Debris Act as amended by the Save our Seas Act provided for the National Oceanic and Atmospheric Administration to work with other federal agencies to address marine debris sources, to assist in facilitating a response to a ‘severe marine debris event’ and to develop international action.Footnote ¹⁹ Not unsurprisingly, given the growth of the plastics industry in the United States and the strength of the industry lobby,Footnote ²⁰ the law fails to specifically address unabated plastic manufacturing for ends such as single-use packaging as one of the unmitigated sources of marine pollution.

A second 2020 Save Our Seas 2.0 Act that passed the partisan US House and Senate extends financing for a trust fund and a prize competition.Footnote ²¹ While the prize competition offers an improvement over the existing 2018 Save our Seas law by rewarding one or more individuals for the development of ocean-degradable packaging materials and other packaging innovations, the law remains quite ‘thin’ because it fails to recognize the existence of numerous viable ocean-degradable packaging materials and to mandate for better packaging standards using these existing materials. Instead, the proposed US law presumes that the market will boost the prize winner’s innovation, plastic production will shift to new materials on a schedule that is amenable to plastic producers and Congress will not need to intervene. Equally ‘thin’ are the provisions on addressing the proliferation of ocean-bound plastic in the fishing industry, where government administrators ‘shall encourage United States efforts, such as the Fishing for Energy net disposal program’.Footnote ²²

The United States’ approach is a ‘thin’ approach because it offers nothing more than a potential indirect fix through the possible development of a new market niche. There are no affirmative steps designed to transform existing supply chains. The United States could have attempted a ‘thick’ law fix that would address the heart of the problem, as it attempted to do with the 1970 Clean Air Act mandating ‘technology-forcing’ that required the automobile industry to design higher efficiency vehicles and better emission control systems.Footnote ²³ The ‘thinness’ of US efforts is unsurprising given the powerful lobbying support from the Grocery Manufacturers Association, the America Chemistry Council and the Plastic Industry Association.

A second example of a ‘thin’ approach is taken by Uganda whose legislation, at first glance, seems to be on target to address the issue of plastic production. Uganda extended a ban on plastic bags, but a closer review of the ban illustrates that a large sector of single-use plastic packaging production remains intentionally unregulated. When Uganda opted in 2010 to ban the importation, sale and use of plastic bags in response to the waste challenges faced by the nation, the government adopted a set of regulations that allowed for extensive exceptions to the more general prohibition against plastic bags, including ‘plastic for packaging of toilet paper’, ‘shrink sleeves made of plastic for labelling of water bottles, cosmetic bottles, and jars’, ‘plastic bags used for packaging of candy sweets, biscuits, pasta, sugar… and any other food or cosmetic product requiring moisture barrier properties’ and ‘plastic sheeting for agricultural, horticultural or floricultural use’.Footnote ²⁴ When the schedule to the regulations listing the exceptions to the ban is read in toto, the list of exceptions encompasses a broad array of potentially problematic packaging and industrial materials, where alternative packaging materials are likely to exist though they may be more costly. While these exceptions that were negotiated into the law reflect the reality of stakeholders who have already sunk costs into packaging materials and packaging machinery, they also reflect a ‘thin’ approach to law, as the status quo for plastic manufacturing remains for much of Uganda.Footnote ²⁵

Finally, even where a State imposes a ban on plastic importation or production, laws may appear tough on their face but are unable to be implemented due to unenforceability. As UNEP authors noted in a recent report on the legal limits of single-use plastics, ‘the majority of bans do not contain specific enforcement provisions, such as fines or prosecutions’.Footnote ²⁶ For countries where the normative push in support of the legal ban framework lacks broad community support, lack of enforcement means that the law may become ‘ultrathin’, as it depends on persuasion for implementation rather than authority.

5.3.2 Thicker Laws?

A couple of ‘thick’ laws have yet to be fully tested but could change production paradigms if broadly adopted and with the intention of innovating in the existing packaging market. What constitutes a ‘thick law’ for the purposes of marine plastic waste is a law with enough substantive content and implementation to lead to a fundamental change in the current packaging economy that sells a million conventionally produced plastic bottles every minute and expects to grow by 20 per cent.Footnote ²⁷ As of today, few countries are prepared to experiment with these laws. On 29 July 2019, Tuvalu introduced an import ban on single-use bottles under 1.5 litres and food wrap as well as bags, straws, cutlery and plates.Footnote ²⁸ Failure to comply could lead to an individual fine of up to US$3420 or a corporate fine of up to US$6840 for a first offence and/or imprisonment of up to two months. Depending on how regulators interpret ‘food wrap’, these laws could change how locally produced food is distributed and packaged. Tuvalu is, however, a very small market for global trade.

As of mid-2020 Costa Rica is in the process of implementing a law requiring importers, producers, marketers and distributors of single-use plastic bottles and products that are packaged in single-use bottles to engage in either: using recycled resins, recovering bottles in an extended producer responsibility scheme, designing products minimizing waste or working with municipalities to recover waste.Footnote ²⁹ Violations of the law would be subject to fines and an obligation to compensate and restore environmental damage. Implementation of this law could substantially change packaging practices within Costa Rica, but there is no requirement that any of the packaging be marine biodegradable.

In the Caribbean Sea and Pacific Ocean region, several ‘thicker’ laws have been proposed with a ban focused on particular packaging and single-use items including single-use plastic bags, Styrofoam containers, plastic utensils and plastic straws.Footnote ³⁰ For each of these items, there are readily available alternatives that are less damaging in terms of generating potential marine pollution. As of 2020, Canada is in the process of proposing a ‘thicker’ law to reduce plastic packaging in the market by banning additional products beyond the Caribbean and Pacific States, including beverage six-pack rings and food packaging made from plastics that are difficult to recycle. Many other products, including garbage bags, snack food wrappers, disposable personal care items and beverage containers, are not proposed for inclusion in the single-use plastics ban due to a lack of existing readily available alternative packaging.Footnote ³¹

The paradigm that needs to shift is from single-use disposable materials to some version of a circular packaging economy where materials selected for use by the industry do not contribute to toxicity or other serious long-term impacts on the environment. The challenge for countries that have adopted these rules is that, as States with limited market share, it may take time before products can be shifted to marine-friendly packaging. Whether there would be consumer backlash due to the unavailability of products leading to legislative retraction remains to be seen with the recently adopted Caribbean laws. In Saint Vincent and the Grenadines, the ban on distribution, sale and use of disposable plastic shopping bags has been suspended until after the Christmas season in part because of COVID-19 but also allegedly to allow businesses the ability to deplete their stocks of plastic bags.Footnote ³²

For either ‘thin’ laws or ‘thick’ laws, implementation can always pose a challenge. Even where a given regulation provides for administrative penalties such as Uganda’s 2010 regulations prohibiting the import or use of plastic carrier bags measuring less than 30 microns in thickness,Footnote ³³ state institutions appear to lack the political will to pursue enforcement activities due to special interests. A 2018 commentary in a Uganda newspaper observed that the law ‘has for the last 8 years almost had no legal force’ despite commitments by the National Environmental Management Authority, Kampala Capital City Authority, the President and the Finance Minister to make progress.Footnote ³⁴ The High Court of Uganda even weighed in on the matter with a 2012 legal opinion indicating that the continued proliferation of unmanaged plastic garbage across Uganda, including some items that were deemed permissible under the government regulation, violated the rights of Ugandan citizens to a clean and healthy environment.Footnote ³⁵ The Ugandan government, as a whole, has proved to be less than resolute in implementing its law because of constant pressure from plastic manufacturers in Uganda, who argue that the ban is destroying their livelihood and that the problem is not high rates of manufacturing but low rates of recycling.Footnote ³⁶

The gaps in the law operate more like a sieve. While certain products are subject to regulation, including bans designed in part to shift the packaging industry to less environmentally damaging materials, the status quo remains largely in place for most containers. Single-use plastics remain a ‘wicked problem’Footnote ³⁷ that is hard to resolve because the problems associated with production and consumption continue to accrue across a dispersed landscape.

Ideally, a global instrument will emerge to fill this gap. Some discussions have advanced. In 2019, UNEP launched a project ‘Protecting the Marine Environment from Land-Based Pollution Through Strengthened Coordination of Global Action’ that includes linking implementation of the Global Programme of Action to the UN Environment Assembly (UNEA), which is the ‘world’s highest-level decision-making body on the environment’.Footnote ³⁸ During the third session of the UNEA in 2018, States convened an ad hoc open-ended expert group on marine litter and plastics that has continued proposing global responses. As the scale of marine plastic waste challenges expands, the Assembly may in coming meetings ‘consider the need for international rules, as well as recommended practices and procedures, to further the objectives of the Global Programme of Action’ and offer some essential rules or standards.Footnote ³⁹

In 2020, the expert group collected nine potential State and regional governance responses for future Assembly action. Responses varied greatly across geographical groups. The African Group called for a new internationally legally binding agreement that would include reduction targets, national action plans, reporting (including plastic production, plastic use, plastic waste management), monitoring of national discharge by an international scientific body, a financial mechanism to support implementation, technology transfer and capacity building and adopting ‘uniform regulatory measures … [for] those categories of plastic products that are most prone to leakage and that pose a particular risk to the environment, including single-use plastics, fishing gear and primary microplastics’.Footnote ⁴⁰ Norway agreed with the idea for a new instrument but recommended that the focus be on enhancing cooperation and coordination between States to minimize plastic waste, better management of recycling, designing sustainable plastic products, sharing responsibility for plastic waste management fairly, creating targeted measures for microplastics and developing a clearinghouse of knowledge around marine plastic.Footnote ⁴¹

Vietnam offered an even more specific and ambitious vision of a future treaty. The States’ draft instrument that would include binding measures to regulate subsidies to the fossil-fuel industry, identify alternative materials to replace plastics, reduce production of low density polyethylene, introduce eco-labelling standards, improve compliance with Basel Convention on any trade in plastic waste, ban certain uses of low density polyethylene and ‘problematic plastics’, implement Extended Producer Responsibility schemes for private industry, set international standards on waste management practices for export and import of recycled waste, create an international financial mechanism for waste management and recovery, mandate national action on marine cleanup, create a Regional-level Plastic Study Center, implement an international or regional mechanism for monitoring and reporting of transboundary plastic waste flows, regulate import and export of plastic materials and waste, adopt national action plans that match global obligations, adopt regular reporting, generate global rules and standards on extended producer responsibility, implement the ‘polluter pays’ principle and create capacity building programmes.Footnote ⁴²

The United States’ submission sought more cooperation between States but did not support new international obligations. Rather it supported better local implementation. The United States called for better use of existing instruments and institutions to manage marine litter through regional seas programmes, regional fisheries bodies and river basin committees.Footnote ⁴³

Is existing law fit for purpose to protect oceans from unmanaged marine plastics? Regrettably, no. Existing law is simply too ‘thin’ because the laws either fail to address the essential challenge of marine litter, like the proposed US law, or the substantive components of laws appear not to be systematically implemented, as in Uganda. International law conversations at the UNEA offer hope that States might be able to coordinate a global response to be implemented nationally, but as of yet there is no common vision beyond agreement that marine plastic litter must be reduced. While not every large plastic-producing or using country participated in submitting responses, the existing responses illustrate two important framings of existing marine plastic pollution issues. For some entities such as the United States who are eager to protect their industries, marine plastic pollution is understood not as a consumption problem but as a waste management challenge. There is no political interest in a paradigm shift. For other entities such as the African group, Norway or Vietnam, there appears to be substantial political interest in transforming the status quo of plastic production to create a paradigm shift allowing for wholesale reimagination of aspects of our economy that have become conventional. Even so, there are differences in approach.

While concluding any global instrument to specifically address marine plastics will be fraught with political difficulties given the numerous populist/nationalist politicians governing certain States who have historically operated as bottlenecks to international cooperation, allowing business as usual for the conventional plastic industry will only continue to undermine the object and purpose of existing legal regimes such as the Law of the Sea Convention. If law is going to be part of any potential paradigm shift to change what plastic is produced and how it will be used, there need to be stronger market signals. Section 5.4 builds on what Vietnam proposed indirectly in its submission to the ad hoc commission in terms of regulating ‘subsidies’ for fossil-fuel based primary feedstocks. In addition to any possible re-examination of fossil fuel subsidies, States across the globe need to apply a reasonable global carbon tax on plastic manufacturing from fossil fuel derivatives to achieve both a reduction of marine plastic litter but also a reduction of greenhouse gas emissions.

6.2.1 International Space Law

The Outer Space Treaty is a universal treaty establishing a legal regime for state activities in the exploration and use of outer space.Footnote ¹² Importantly, the Outer Space Treaty places responsibility on State Parties for their national governmental and non-governmental activities in outer space, and for assuring that national activities are carried out in conformity with the Treaty provisions. It further provides that the ‘activities of non-governmental entities in outer space, including the Moon and other celestial bodies, shall require authorization and continuing supervision by the appropriate State Party to the Treaty’.Footnote ¹³ The State of registration of a space object ‘shall retain jurisdiction and control over such object’, and over any personnel thereof, while in outer space or on a celestial body.Footnote ¹⁴

General obligations of States in the space sector should be interpreted in light of applicable international environmental law provisions.Footnote ¹⁵ The Treaty contains relevant principles of law such as the principle of cooperation and mutual assistance, and the duty to report on potentially hazardous activities.Footnote ¹⁶ Such fundamental rules of international environmental law as the duty to prevent transboundary environmental harm and the duty to notify of imminent danger had already been articulated in international environmental law at the time when the space treaties were developed.Footnote ¹⁷ With regard to nuclear safety, the UN Principles Relevant to the Use of Nuclear Power in Outer Space (NPS Principles) are accepted as part of customary international law.Footnote ¹⁸

Further, the contours of the principle of prevention are arguably detectable in international space law instruments, including the Outer Space Treaty and the Liability Convention. In 1999, the UN recognized that ‘action should be taken to ensure, to the extent possible, that all space activities, in particular those which may have harmful effects on the local and global environment, are carried out in a manner that limits such effects and to take appropriate measures to achieve that objective’.Footnote ¹⁹ This confirms the existence of a state obligation to take relevant measures to prevent and combat environmental degradation by spaceflights. However, the specific aspects of this obligation, including the criteria for determining environmental ‘harm’ triggering the duty to take measures are unclear.Footnote ²⁰

Other questions that also remain are what kind of state measures would be required to achieve this objective, and whether existing international space law is adequate for this purpose. The ambiguity of state obligations laid down in space law instruments and the absence of expressly formulated provisions on protection of the Earth’s environment – other than Article IX of the Outer Space Treaty addressing protection of the Earth’s environment from pollution by extraterrestrial matter – results in challenges for the effectiveness of the environmental rule of law in the space sector. For example, international space law is silent on the duty to conduct an environmental impact assessment before starting a space activity. There are also no jointly developed standards of environmental safety and emission levels.

The legal relevance of the precautionary approach in the face of scientific uncertainty with regard to the environmental effect of spaceflights, including their terrestrial dimension, is not articulated explicitly in outer space law instruments, with the exception of the NPS Principles. These Principles require States to conduct safety assessments and take other relevant measures, indicating the importance of the precautionary approach (if not the precautionary principle) in the nuclear sector of outer space activities.Footnote ²¹ The overall legal status of the precautionary principle – or at least the relevance of the precautionary approach – in outer space law is not yet commonly agreed.Footnote ²² This may be partly explained by the continuing uncertainty of the precautionary principle and its legal status in international environmental law generally.Footnote ²³

An important condition for effective environmental rule of law in the space sector is the existence of an adequate international institutional framework. International governance of outer space, including its environmental dimension, takes place at several levels. The global space governance institution, the UN Committee on the Peaceful Uses of Outer Space (COPUOS),Footnote ²⁴ has contributed significantly to development of policy on the long-term sustainability of outer space and mitigation of space debris.Footnote ²⁵ Other international and regional organizations have also played an increasingly significant role in space governance. Importantly, the European Space Agency (ESA)Footnote ²⁶ contributes to the formation of space law as it develops its own internal procedures, negotiates international agreements in the space sector and implements international space practices.Footnote ²⁷ The ESA has been working on a green fuel project to replace toxic space propellants such as hydrazine.Footnote ²⁸ However, COPUOS and other international space institutions do not have a specific environmental law-making mandate, nor are they explicitly given competence to monitor and supervise member States’ measures regulating the terrestrial dimension of environmental protection in the space sector.

6.2.2 Law of the Sea as a Normative Basis for Regulating Marine Pollution by Spaceflights

UNCLOS provides a comprehensive legal framework on marine environmental protection.Footnote ²⁹ A general obligation of States to protect the marine environment from the harmful impact of space activities follows from Article 192 UNCLOS. Crucially, UNCLOS requires States to exercise due diligence in environmental matters by adopting appropriate measures and showing adequate levels of vigilance in their enforcement and control.Footnote ³⁰

Article 192 also encompasses potential impacts on the marine environment, transboundary and non-transboundary alike,Footnote ³¹ the duty to protect the oceans from future threats and to take positive action with a view to maintaining and improving their present condition.Footnote ³² The obligation to protect the marine environment from pollution is set out in Article 194 UNCLOS and detailed in several further provisions of Part XII. Although UNCLOS does not expressly include spaceflight pollution in its scope, it seeks to address ‘all issues relating to the law of the sea’ and requires States to protect and preserve the marine environment from all sources of pollution.

In general, the definition of pollution envisages actual or likely ‘deleterious effects’ on the marine environment such as harm to living resources or hazards to human health.Footnote ³³ While the general threshold for harm is relatively low, some effect (even if only potential) on the marine environment is required. The focus appears to be not on changes in the marine environment in general but on harm to some more or less specific interests or resources.Footnote ³⁴ Article 194 also envisages a nuanced approach, by requiring more stringent control of activities that may harm ‘rare or fragile ecosystems’.Footnote ³⁵

Effective application of Article 194 is thus conditioned on the availability of knowledge about the effects of spaceflights on the marine environment, allowing State(s) to rely on some scientific outputs in order to determine whether and what ‘adequate’ and ‘necessary’ measures are to be adopted to tackle such pollution.Footnote ³⁶ Still, existing research on the marine environmental effects of spaceflight appears rather piecemeal. These information gaps result in significant uncertainty about the risks and extent of environmental degradation that accelerating spaceflights may bring about, calling for use of the precautionary approach to protection of the marine environment from spaceflight-source pollution. In this author’s view, the hazardous character of spaceflight activities calls for application of the precautionary approach as part of the duty of due diligence. However, while precaution is envisaged in several multilateral environmental agreements and has also been accepted by international courts with regard to specific activities and sectors, the general relevance of the precautionary approach in the law of the sea remains unclear.Footnote ³⁷

Significant information gaps on the marine environmental impact of spaceflight highlight the particular importance of provisions addressing research cooperation (Article 200), establishment of scientific criteria (Article 201), monitoring the risks or effects of pollution and publishing reports (Articles 204 and 205) and assessing the potential effects of activities on the environment (Article 206). By comparison, no corresponding provisions with regard to environmental research are included in space treaties and other space law instruments developed at the international level.

Furthermore, UNCLOS also contains an overview of types of measures to be applied by States to prevent or minimize marine pollution.Footnote ³⁸ However, UNCLOS grants States a considerable degree of discretion in their choice of appropriate measures. In particular, it does not require that environmental protection measures must always be adopted by States at the international level: States may adopt ‘individual or joint measures as appropriate’ to address marine pollution.Footnote ³⁹ Further, international measures do not need take the shape of binding regulations or agreements: ‘soft law’ measures such as rules, standards or recommendations are also acceptable (if ‘appropriate’) and may indeed be preferable for States for a number of reasons. However, to meet its duty of due diligence, a State must actually consider what regulation, and at what level – individual, joint, global or regional, binding or not – will be adequate to address spaceflight pollution.

Article 194 clarifies that responsibility for taking measures is vested in the State holding ‘jurisdiction or control’ over activities that may cause damage to the marine environment of other States.Footnote ⁴⁰ The State in whose territory the spaceport is located would clearly hold ‘jurisdiction or control’ over spaceflight activities within the meaning of Article 194. This would also be consistent with Article VI of the Outer Space Treaty, which assigns central responsibilities to the ‘appropriate’ State, which must authorize and properly supervise space activities by non-governmental entities in outer space.Footnote ⁴¹

The notion of ‘jurisdiction or control’ may also include spaceflights conducted extraterritorially, that is, from launch sites located in other States or from the high seas. This is in line with the Outer Space Treaty.Footnote ⁴² The duty to take appropriate measures to protect the marine environment thus also applies to spaceflight activities conducted from another State’s territory or from the high seas. Article 192 also requires a State (or States) to take measures with regard to marine pollution by space debris re-entering the Earth, including pollution of the high seas. However, identifying the State(s) holding ‘jurisdiction or control’ over an extraterritorially located object or activity resulting in marine pollution may be difficult. It is questionable whether Article 194 UNCLOS should be interpreted in light of the relevant space law provisions, at least where such interpretation may result in narrowing down the application of Part XII UNCLOS.

Further, it is problematic that UNCLOS does not clarify the competences and responsibilities of other States whose EEZs may be affected by spaceflights. As the Rockot case illustrates, a coastal State in whose EEZ spaceflight produces environmental impacts may find itself in a vulnerable and unclear legal position.Footnote ⁴³ In this author’s view, the provisions of UNCLOS Part V entitle a coastal State to regulate or ban the use of its EEZ for jettisoning spaceflight residues by a foreign State, by virtue of coastal State jurisdiction over the EEZ.Footnote ⁴⁴ Moreover, in light of the Part XII obligations described earlier, both the coastal State and the launching State(s) are under a positive obligation to take measures to prevent environmental harm to the EEZ.

Nevertheless, UNCLOS Part V does not provide for an obvious allocation of jurisdiction in such cases, challenging the coastal State’s jurisdiction to regulate pollution resulting from spaceflight of foreign origin. A relevant legal basis for resolving conflicts arising from lack of clear allocation of rights and jurisdiction in UNCLOS may be found in Article 59 UNCLOS. This provision addresses cases where UNCLOS does not expressly attribute rights or jurisdiction by requiring resolution of a problem ‘on the basis of equity and in the light of all the relevant circumstances, taking into account the respective importance of the interests involved to the parties as well as to the international community as a whole’. Protection of the marine environment from jettisoned space waste may, in principle, be one of the relevant interests under Article 59 (both of the coastal State and the international community). However, effective application of this provision is, in this author’s view, conditional on cooperation to facilitate interaction and conflict resolution between the States concerned and to include the interests of the ‘international community as a whole’ in this work.

6.2.3 Relevance of the Dumping Regime to Tackling Marine Pollution in the Space Sector

Section 5 of Part XII UNCLOS addresses specific sources of marine pollution and details the general rules of Article 194. Arguably, some of these provisions may provide a relevant normative basis to strengthen marine environmental protection from spaceflight pollution. This part examines Article 210, which requires States to take measures to prevent, reduce and control pollution of the marine environment by dumping. Importantly, according to this provision, States must ensure that national laws, regulations and measures prevent dumping from being carried out without permission from the competent authorities.

States are required to adopt relevant national rules and measures to prevent marine pollution by dumping that are no less effective in preventing, reducing and controlling such pollution than global rules and standards.Footnote ⁴⁵ These international rules are laid down in the London Convention on Dumping (the London Convention)Footnote ⁴⁶ as amended by the 1996 Protocol. The latter instrument extends the Convention provisions to include aircraft and imposes a prohibition on marine dumping, with a narrow exception.Footnote ⁴⁷ The provisions of Article 210 UNCLOS are further detailed and strengthened in the London Convention with the 1996 Protocol, which transforms a ‘right’ into an ‘obligation’. In addition, dumping is regulated at the regional level, for example, by the Convention for the Protection of the Marine Environment of the North-East Atlantic (OSPAR Convention).Footnote ⁴⁸

International rules on protection of the marine environment from pollution by dumping are potentially relevant for spaceflight-source pollution. First, provisions on marine dumping may be relevant to governing de-orbiting of end-of-life space objects and regulating pollution caused by jettisoned space residues on the high seas.Footnote ⁴⁹ Second, the marine dumping regime may also be useful for regulation of spaceflight-source pollution within maritime zones under jurisdiction of a coastal State, including situations when spaceflight residues generated by launches of space objects from another State’s territory fall into maritime areas under national jurisdiction of a coastal State.Footnote ⁵⁰

Thus, Article 210(5) UNCLOS precludes dumping within the territorial sea and the exclusive economic zone or onto the continental shelf without the express prior approval of the coastal State. The coastal State also has a right to regulate dumping within its maritime zones through a system of permits, regulations and controls. The wording of this provision may allow a coastal State to prohibit third States from using its EEZ for jettisoning spaceflight residues. It also specifies that a coastal State’s right to issue permits and regulate and control such dumping is subject to the duty to bring the matter up for ‘due consideration’ by those States that, by reason of their geographical situation, may be adversely affected by dumping.Footnote ⁵¹ These may arguably be neighbouring States and States dependent on navigation or other activities in the waters where jettisoning is taking place.Footnote ⁵²

The question is whether a coastal State within the meaning of the dumping regime may also be viewed as the ‘appropriate’ State for the purposes of Article VI of the Outer Space Treaty. The latter requires that the appropriate State must authorize and supervise space activities by its non-governmental entities.Footnote ⁵³ This question is relevant for situations when a coastal State is acting as a launching State (from whose territory the launch is taking place), or as a State whose maritime zones are used by another State for jettisoning spaceflight residues. As pointed out earlier, the coastal State’s rights and obligations in the latter situation are not fully clear under general UNCLOS provisions and the Outer Space Treaty. If applicable, provisions on marine dumping laid down in Article 210 and the London Convention with Protocol would spell out a coastal State’s competences to regulate such cases more clearly.

Regrettably, spaceflight-source pollution is not included in the definition of dumping in UNCLOS and the London Convention.Footnote ⁵⁴ The regime only regulates dumping from vessels, platforms and other man-made structures, or from aircraft at sea. While Article 4.2 of the 1996 Protocol also includes ‘any deliberate disposal at sea of vessels, aircraft, platforms or other man-made structures at sea’ (author’s italics), it is arguable whether jettisoned parts of space rockets and other space objects, including end-of-mission/de-orbited spacecraft, may be viewed as ‘aircraft’.Footnote ⁵⁵ In any case, the definition of dumping expressly excludes disposal of wastes or other matter ‘incidental to, or derived from the normal operations’ of vessels, aircraft, platforms or other man-made structures at sea and their equipment.Footnote ⁵⁶ Spaceflight-source pollution in the shape of jettisoned launch waste is part of a normal launch operation,Footnote ⁵⁷ much like so-called operational discharges from ships. The marine dumping rules also differentiate between ‘deliberate’ and ‘incidental’ pollution, albeit without detailing what constitutes either type of pollution. Pollution resulting from an accident such as a space rocket explosion following a launch is likely not to be viewed as ‘dumping’ within the meaning of these regulations.

6.3.1 Overview

The discussion in the previous section shows that the international environmental regime governing the space sector is fragmented and does not adequately regulate state responsibility for environmental measures in the spaceflight sector. Admittedly, UNCLOS establishes more far-reaching environmental obligations on States engaged with space activities than does the Outer Space Treaty, which only imposes a duty on States to conduct international consultations before starting activities with potentially harmful interference with activities by other States in outer space.Footnote ⁵⁸ UNCLOS clarifies that States are responsible for protection of maritime areas, including the high seas, from any pollution, which would include spaceflight-source pollution.

However, the normative relevance and effectiveness of UNCLOS for spaceflight-source pollution is challenged by several factors. It often remains unclear which State should be responsible for taking appropriate measures to protect the marine environment from spaceflight-source pollution. It is also not clear what provisions would be feasible to develop, in what kind of instrument and what issues require international, rather than national, regulation. This may be partly explained by the absence of spaceflight-specific environmental provisions in UNCLOS and other international instruments, and the inherent ambiguity and normative weakness of general international environmental law, which is unable to fill the gaps in the space law and law of the sea regimes.

In this author’s view, the first step is to clarify and strengthen the relationship between international space law and the law of the sea. Currently, adequate interaction between the space law and law of the sea regimes is lacking at the normative and institutional level, which in turn stands in the way of developing environmental regulation in the space sector. Further, with regard to development of substantive environmental provisions in the spaceflight sector, unilateral (national) measures should arguably be supplemented by joint (international) state measures. To enable progress in this area, it is necessary to obtain sufficient knowledge about the environmental effects of spaceflight and to develop an adequate institutional framework to back up the normative and procedural dimension of environmental protection in the space sector.

6.3.2 Strengthening Knowledge about the Marine Environmental Impact of Spaceflight

UNCLOS Part XII Sections 2–3, which lay down provisions on inter-state cooperation on gathering and exchange of knowledge about spaceflight pollution, should be used actively by States responsible for spaceflights as well as by States affected by spaceflight pollution. The necessity for measures to protect the marine environment is normally determined by means of establishing appropriate scientific criteria for the formulation of rules (Article 201 UNCLOS), by advice from international bodies such as the International Council for the Exploration of the Sea (ICES), and by monitoring and assessing the environmental impact of spaceflights (Articles 204–206).

As pointed out earlier, an important impediment is the absence of sufficient knowledge on the environmental impact of the spaceflight sector, as available research on the marine environmental effects of space activities is rather scarce and appears unsatisfactory.Footnote ⁵⁹ States should more actively apply UNCLOS provisions requiring them to gather and exchange knowledge on spaceflight pollution of the marine environment. This may ensure the necessary scientific basis for assessment of space launch effects on the marine environment and enable development of a systematic international approach to problems revealed.

Arguably, the present under-utilization by States of UNCLOS provisions on scientific research on the environmental impact of spaceflight may even lead to infringement of the due diligence obligation with regard to protection of the marine environment. It is generally recognized that the duty to conduct an environmental impact assessment (EIA) follows from general international environmental law as part of a State’s due diligence obligation, and is necessary for fulfilment of the international environmental law principle of prevention.Footnote ⁶⁰ As EIA is an important – although not in itself sufficient – step towards collection and sharing of knowledge on the cumulative environmental effects of spaceflight, it is hence essential for the future development of environmental standards and requirements in the space sector.Footnote ⁶¹

With regard to the marine environment, the duty to assess the potential effects of planned space activities would follow from Article 206 UNCLOS. The duty to conduct EIA also applies to activities with an impact on the environment in areas beyond the limits of national jurisdiction.Footnote ⁶² UNCLOS also requires States to publish reports with the results of such assessment or communicate the results to a competent international organization.Footnote ⁶³

However, UNCLOS leaves it to the responsible State to evaluate whether there are ‘reasonable grounds for believing’ that the threshold for EIA – ‘substantial pollution of or significant and harmful changes to the marine environment’ – is reached.Footnote ⁶⁴ Thus, States enjoy wide discretion to determine whether an EIA should be required for spaceflight, and what activities more specifically form part of such assessment. For example, some States require an EIA for launch activities; however, there exists no consistent and uniform international approach to the scope of this requirement.Footnote ⁶⁵

It is arguably necessary to harmonize approaches to EIA among spaceflight-active States by expressly including spaceflight pollution in the scope of relevant activities and by detailing the conditions and requirements for EIAs. In this respect, it would be more effective to address the issue through a global, rather than a regional, measure such as the forthcoming legally binding instrument on biodiversity in areas beyond national jurisdiction.

The Convention on Environmental Impact Assessment in a Transboundary Context (Espoo Convention)Footnote ⁶⁶ also sets out more detailed rules for EIA, including rules on the duty to notify and consult each other and important procedural provisions. Regrettably, the Espoo Convention does not expressly include spaceflight and, in any case, does not have global reach in terms of its ratification status. Amendment of the Espoo Convention would be an important step forward. In the EU context, a corresponding change could arguably be achieved by amending existing secondary legislation.Footnote ⁶⁷

6.3.3 Developing the Institutional Framework in the Space Sector to Include Environmental Matters

To meet their due diligence obligations to protect the environment from spaceflight-source pollution, it is also crucial for States to establish environmental cooperation in the spaceflight sector. Outer space law is based on the premise of ‘broad international cooperation in the scientific as well as the legal aspects of the exploration and use of outer space for peaceful purposes’.Footnote ⁶⁸ UNCLOS explicitly requires States to cooperate directly or through ‘competent international organizations’ on matters of the law of the sea. Cooperation through an organization or an institution, in addition to direct bilateral or multilateral cooperation on an ad hoc basis, has a number of advantages for regulating issues of global concern. For example, in the shipping sector, States acting through the International Maritime Organisation (IMO) have over time developed international safety and environmental standards, obligations and procedures. In the space sector, development of international emission and other environmental safety standards comparable to those adopted under the auspices of IMO (e.g., MARPOL) would be far too premature.Footnote ⁶⁹ It would be feasible to begin by tackling the lack of an adequate institutional framework necessary to facilitate inter-state dialogue and to support cooperation on research, harmonization and monitoring of environmental legal standards in the space sector.Footnote ⁷⁰ Presently, there are no international institutions that hold a clear mandate to address pollution of the marine environment by spaceflights. Better interaction between space law and the law of the sea may be achieved by stronger institutions with clearer competence for protection of the marine environment from pollution caused by spaceflight. This could also preclude unnecessary fragmentation of the environmental legal framework in the spaceflight sector, ensuring that international legal solutions consider protection of the Earth’s environment as a whole.

An internationally coordinated approach through an institution responsible for international legal development in the space sector such as COPUOS, supplemented by inter-institutional cooperation with other competent international organizations, is indispensable to pave the way for prospective harmonization steps. It may also be feasible to adjust and strengthen the existing regulatory and institutional framework for spaceflight pollution, for example, by expanding the marine dumping regime. As pointed out earlier, the London Convention and related instruments contain important regulatory tools that are not present in the space treaties or UNCLOS. Expanding the marine dumping regime to include ‘operational’ (normal) pollution by jettisoned components of space objects and by de-orbited end-of-mission spacecraft may contribute to strengthening legal protection of the marine environment from spaceflight pollution. The relevance of the dumping regime for the spaceflight sector has been under examination via the auspices of the IMO since 2016, but this work has not yet been concluded.Footnote ⁷¹ It is advisable to continue the work initiated by the IMO and UN COPUOS to evaluate expansion of the London Convention to the spaceflight sector and accordingly to amend the 1996 Protocol in order to include disposal of jettisoned space objects into the maritime environment.