Abstract
Despite both upstream and downstream efforts to tackle plastic pollution, there remain a number of ongoing challenges that make the problem of plastic one of the greatest contemporary challenges. The increase in population growth and income in developing countries has exacerbated the problem of plastic pollution, as evidenced by the discovery of increased quantities of plastics in drinking water, food and human cells. Notwithstanding a limited number of treaties directed at the problem of pollution, including plastic pollution, the amount of plastic worldwide is set to double by 2040. Therefore, to manage plastic pollution in a meaningful way, it is crucial that our approach changes, preferably to align with the comprehensive precautionary life cycle approach.
Introduction
“We have a right to know what all this plastic is doing to our bodies.” The frustration expressed by Jo Royle, founder of the charity Common Seas, illustrates well how we often become concerned about pollution only when the risk to our health is discovered. Already in the 1970s, biologists found traces of plastic in the guts of sea birds, such as fulmars. In the 1990s, accumulation zones of floating plastics were observed in remote areas. Yet, it was not until microplastics were detected in human blood earlier this year that sufficient support manifested for the negotiation of a global treaty on plastics. Environmentalists have long been critical of such an anthropocentric focus. However, the human rights approach, although anthropocentric in nature, can be a valuable tool to achieve goals shared by the proponents of environmental law. As Shelton observes, most of the time, human rights and environmental goals do not conflict typically; in fact, they are usually compatible and mutually reinforcing.
The History and Future of Plastics
In 1907,Leo Baekeland invented Bakelite – the first fully synthetic plastic with no molecules found in nature. Marketed as “the material of a thousand uses,” Bakelite could be shaped or moulded into almost anything, providing endless possibilities. During World War II, the plastics industry expanded greatly, as the need to preserve scarce natural resources made producing synthetic alternatives a priority. ATime magazine article noted that because of the war, “plastics have been turned to new uses and the adaptability of plastics demonstrated all over again.” After the war, the surge in plastic production continued, but two factors contributed to increased residual waste: population and the rapid development of economies. Since the 1970s, the rate of plastic production has grown faster than that of any other material. If such growth trends continue, theUNEP has warned that the global production of primary plastics is likely to reach 1,100 million tonnes by 2050. The chemical properties that have made plastic an incredibly useful and durable material are also why it is difficult to dispose of plastics. Some types take thousands, or even tens of thousands, of yearsto degrade in a landfill. A significant aspect of the broader plastic pollution problem is marine plastic pollution, which is often referred to in the literature as a symptom of a land-based problem. It is a large-scale problem, transboundary in nature and involves equity concerns. It both threatens marine life and human health and creates important economic costs. Globally, plastics have been shown to makeup 60–80% of marine litter, which clearly highlights a general failure to properly manage the disposal of plastics both on land and at sea. If the present business-as-usual scenario endures, it is believed that the oceans will containmore plastics than fish (by weight) by 2050.According to the UN, this is one of the greatest environmental concerns of our time and requires urgent action.
The Inadequate “Downstream” and “Upstream” Measures to Tackle Plastic Pollution
Plastic pollution from a downstream perspective
Until recently, waste, including plastic waste, was seen as a problem – an unwelcome and costly by-product of modern societies. In contrast to climate change and energy, waste issues have largely been omitted from discussions concerning green economies and sustainable development. Accordingly, both domestic legislation and international treaties have tended to focus on matters of final disposal, controlling exports and imports, and preventing the illegal trafficking of waste. Such a management scheme is called the downstream approach.
At the international level, arguably the agreement with the greatest application to the management of plastics is theBasel Convention. It has186 States Parties, provides for a high level of international participation and further supports the opportunity to manage the hazard posed by, and the overall quantities of plastics globally. By adopting a binding treaty, the international community has sought to address the concerns surrounding the unjust shipment of waste from developed to developing States. While plastic waste was not clearly defined and covered under the original classification of hazardous substances, the States Parties agreed on amendments that imposed trade restrictions upon non-state parties. While the current framework does not classify plastics as hazardous unless they contain persistent organic pollutants regulated under theStockholm Convention or if they meet certain criteria under theBasel Convention, a Party can list plastic waste as hazardous withindomestic legislation (Art 3.1), resulting in the prohibition of the trade of plastic waste with such Party (Art 4.1). Also, if the receiving Party’s waste management is not environmentally sound, the exporting Party is obliged to disallow the trade of plastic waste(Art 4.2.e). Nevertheless, the Basel Convention does not amount to reduction of waste and neither to a ban on the import, transit or export of plastic waste. It merely clarifies when and how waste is handled. Also, the potential of treating plastic as a hazardous waste is limited, especially as plastics from household wastes are regarded as “other” wastes inAnnex II.
While theBasel Convention is a step in the right direction, particularly in terms of international coordination, States Parties have been left to implement elements of the Convention on their own, which reduces its overall efficacy. The Basel Convention’s enforcement relies on the establishment of a “soft” law procedure within individual domestic systems, such that the responsibility is placed on States Parties to establish and enforce their own measures of compliance. Consequently, there is no level playing field, and inevitably some countries (such as Indonesia) have introduced stricter regulations, and thus greater levels of enforcement, than other countries. Furthermore, there are stark differences among States Parties when it comes to the regulation requirements, standards, and labelling procedures affected by their respective domestic laws. Their piecemeal application further reduces the effectiveness of the Convention.
The ineffectiveness of theBasel Convention as a whole can be illustrated with the example of China. China ratified theBasel Convention in 1991 but has nevertheless caused unacceptable environmental harm since then.It has imported 56% of the globally traded plastic waste, including 87% of the plastic waste exported from Europe, despite the requirement of prior consent between the exporting and importing states and the requirement that information must be provided by the importing state, which confirms the “environmentally sound management of the wastes in question” (Article 6.3.b). The problemwas, to a certain level, recognised by China, which implemented its National Sword policy in February 2017.
Plastic pollution from an upstream perspective
The upstream approach to plastic pollution is the alternative to the downstream approach. The focus of this perspective shifts from waste management to the earlier stages of production and the use of materials that create waste. One of the first global treaties that framed pollution from an upstream perspective wasthe Stockholm Convention, which prohibits or restricts the production and use of some of the most hazardous chemicals, known as persistent organic pollutants (POPs). This has an important consequence for plastic pollution as some chemicals, such as polybrominated diphenyl ethers, are added to plastics. By preventing the use of POPs in plastics, the Stockholm Convention addresses the problem of plastic pollution at a different stage of the life cycle (its creation rather than its disposal) than the Basel Convention. Similarly, in the context of theConvention on Long-Range Transboundary Air Pollution, States Parties have adopted several protocols governing specific air toxins, including a protocol on POPs, which addresses POPs in regional air pollution in a manner that complements the globally applicable Stockholm Convention. The protocol, which governs sixteen POPs, prohibits the production and use of some substances, restricts the use of others, establishes emissions limitations, and specifies waste management practices.
Tackling Plastic Pollution with a Life-Cycle Approach
Rather than focusing on either the upstream approach (regulation of waste) or the downstream approach (regulation of production) to the problem of plastic pollution in isolation, it is necessary to aim for a holistic life-cycle approach. In a way, the Basel Convention has evolved and acquired many characteristics of a life-cycle approach. For example,Article 4(2) of the Basel Convention establishes a general duty for Parties to reduce their generation of plastic waste to a minimum. Moreover, Article 13(3) sets out obligations to eliminate the production of hazardous and other waste. Of particular importance are the Technical Guidelines that were developed under the Basel Convention for the environmentally sound management of all forms of plastic waste and hazardous e-waste, much of which contains plastic. The technical guidelines for plastic wastes advise that “waste prevention or reduction involves both upstream alterations in product design as well as alterations in consumer habits.”
The Preamble to theBasel Convention also provides an essential vision for the coordinated international governance of plastics management, stating that “the most effective way of protecting human health and the environment from the dangers posed by wastes is the reduction of their generation to a minimum in terms of quantity and/or hazard potential.” Nevertheless, in comparison to other environmental agreements that are concerned with setting out obligations aimed at eliminating a specific hazard to the environment, such as theStockholm Convention,Montreal Protocol,Kyoto Protocol orParis Agreement, the corresponding provision in the Basel Convention can be characterised as relatively modest. Therefore, a holistic approach to the plastic pollution problem requires the involvement of all relevant stakeholders: governments, as key actors in the plastics value chain, must, together with industry participants and consumers, strive to i) eliminate the plastic products that are not needed (through a ban or by refraining from use or consumption); ii) ensure environmentally sound management of plastics (with appropriate recycling methods); and iii) promote innovation so that the plastics we do need are designed and brought into the economy in a way that allows for their reuse.
Global Plastic Treaty
Scholars suchas Kirk and Popattanachai have expressed support for a life-cycle approach that includes the adoption of a framework plastic treaty. After many years of no political will, the need for a comprehensive treaty on plastic was finally recognised on the 2nd of March 2022 at theUN Environment Assembly in Nairobi, where Heads of State, environment ministers and other representatives from 175 nations, endorsed a historicresolution to end plastic pollution, and to forge an international legally binding agreement, by the end of 2024.
“Plastic pollution has grown into an epidemic. With today’s resolution we are officially on track for a cure,” said President of the Assembly, and Norway’s Minister for Climate and the Environment, Espen Barth Eide. Inger Andersen, Executive Director of UNEP, described the resolution as »the most significant environmental multilateral deal since the Paris accord. It is an insurance policy for this generation and future ones, so they may live with plastic and not be doomed by it.«
The mandate agreed by UN member states opened the door for a legally binding treaty that deals with the root causes of plastic pollution, not just the symptoms. Critically, this includes enabling opportunities to set up a circular economy, with measures considering the entire lifecycle of plastics, from its production, to product design, to waste management. Notably, the draft resolution underlines the importance of stronger global cooperation, and encourages action by all stakeholders, including the private sector.
To be fit for purpose, the global plastic treaty should set up a review system for effective scrutiny and monitoring of States Parties’ compliance with their treaty obligations, an implementation support structure that can facilitate the effective global funding and transfer of technical know-how and, finally, an enforcement mechanism with clear rules on responsibility, which would provide an essential tool to hold governments and companies accountable for their environmental impacts.
While time is needed for the realisation of such a treaty, it is certainly a step in the right direction. In the meantime, it is important to look and strive for synergies between the downstream and upstream approaches. One such integrated approach is provided by the partial merger of the three conventions addressing (plastic) waste, Basel, Stockholmand Rotterdam Conventions, calledBSR. In order to facilitate the implementation of the conventions, the Parties have over the years adopted a series of decisions aiming at enhancing cooperation and coordination among the conventions. For example, Parties to all three conventions attend joint regular meetings and instead of three separate secretariats, a single Secretariat, serving all three conventions was set up. With the strengthened synergies between Basel, Stockholm and Rotterdam Conventions at the international level, a circular economy is much easier to achieve.
According to European Parliamentary research, a circular economy could bring EU companies annual net material cost savings ranging from 250 to 465 billion EUR. In a 2011 report, the UNEP estimated the value of the world market for waste to be 40 billion USD per year. However, to avoid the problem of illegal transboundary movement of waste, better enforcement and clearer, more comprehensive legislation is needed. Furthermore, to treat waste as ‘good’ that can be traded, may be problematic from another legal perspective. International environmental law (for example Basel Convention) restricts trade in waste. At the same time, international trade law (WTO jurisprudence, GATT), in principle, prohibits any trade restrictions. As it stands, the notion of ‘goods’ is not defined in international trade law but waste is not excluded. Therefore, when trading waste one may be in breach of the Basel Convention (if not respecting restrictions on trade and prescribed procedure) or in breach of WTO jurisprudence (if not respecting the principle of free trade and no trade barriers for the movement of goods).
While the above conflict between international environmental law and international trade law has not yet been resolved, many efforts have been outside binding treaties to achieve more comprehensive and coherent international regulation of hazardous chemicals and wastes, including plastics. For example, in itsPolicy Brief from 2020, the Strategic Approach to International Chemicals Management proposes more traceability and information-sharing along value chains. It also calls for greater efforts to undertake joint research on the potential risks from chemical additives in plastics and chemicals that are adsorbed by plastics.
Plastic as a Business Opportunity and a Role of Lawyers
The focus on the life-cycle approach can help companies to shift their perception of waste from only being seen as a problem to be solved to being an opportunity – a potential resource or a valuable commodity.The 10th COP of the Basel Convention acknowledged that waste that cannot be prevented could be valuable resources and essentially expressed support for the concept of waste prevention and management as a legitimate economic opportunity. In crafting theSustainable Development Goals, the international community had waste management in mind: for example, the following targets and goals directly or indirectly address this topic: 6.3, 7.1, 7.2, 7. a, 8, 11.6, 12.4, 12.5. In a similar vein, theRio+20 Convention highlighted a green economy as a possible tool for promoting sustainable development and called for the reduction, reuse and recycling of waste, recognising the need for public-private partnerships in these areas.
Setting green economy standards has resulted in good practice in certain contexts, with recycled plastic being increasingly seen as a business opportunity. For example, fashion brands have become famous and have been praised for turning plastic bottles into eco-friendly clothing. Further, a part of the move toward a more sustainable fashion industry involves manufacturers producing and consumers buying fewer pieces, which means there might be certain kinds of apparel, like performance sportswear, that may benefit from the use of synthetic materials to make them durable.
To move toward sustainability, lawyers too can play an important part. They have the expertise and status to reform, advocate for, and enforce laws that frame human behavior as it relates to the environmental crisis, for better or for worse. As environmental law consultantGerry Bates (2002, p. 19) argues, “there is a role for environmental law in formalizing and implementing the vital links between ecology and economics—and it is the role of the environmental lawyer to ensure that this occurs”
While there is not a lot of case law concerning plastic pollution, there are reports on the increased litigation in this area. For example, there has been an ongoing trial before the Supreme Court of the Philippines concerning the alleged failure of the Philippine government to tackle the “unabated production, use and disposal of plastic” over the past two decades.
Lawsuits have also been filed against private companies. In 2020, Earth Island filed three separate lawsuits against Coca-Cola, Pepsi and Nestle for creating a plastic pollution “nuisance” and, interestingly, for portraying themselves as environmentally friendly despite being plastic polluters. While these cases are still pending, they demonstrate the increased awareness of the dangers of plastic pollution and can act as an essential “naming and shaming” tool. For companies that count on goodwill, their brands being ruined in the eyes of the public through negative publicity can be worse than losing a court trial, which in turn can incentivise more sustainable practices.
While the unjust degradation of nature and communities is certainly upsetting, it should also motivate lawyers to achieve justice and raise their voices when environmental laws have been ignored. Not only for the sake of humans but also the environment as such.
Conclusion
Plastic pollution is a global problem. An approach focused exclusively on methods of exporting waste, even if such methods result in effective and environmentally sound waste management at the end destinations, is not a sustainable solution. At the same time, a strict ban on plastic is not realistic nor necessarily desirable. Thus, to curb plastic pollution, the life-cycle approach is needed – the combination of recycling, environmentally sound management and reduction of the production of plastic. To achieve a circular economy systematic political, legislative, and social change is critical.
The recent expression of global political will to adopt a plastic treaty is certainly promising and a step in the right direction. But it is not enough to combat environmental degradation and engage the language of human rights only when such degradation affects the rights to life or health of certain directly affected individuals. Such reductionist use of human rights may even be counter-productive if it reduces environmental values to the very limited sphere of individual interests, thus adulterating their inherent nature as public goods indispensable for the life and welfare of society as a whole.
Given the urgency and magnitude of the challenges posed by plastic pollution, it is the hope that now, as the negotiations for the adoption of a plastic treaty start, the international community continues to work together. But plastic pollution is not just the government’s business, it is everybody’s business. The growing awareness about plastic pollution is a great foundation for change but it is vital that governments, businesses and consumers alike build upon this momentum to preserve and protect our natural and human ecosystems.
About the Author
Ms. Katja Kreft, LLB (University of Ljubljana), LLM (University of Cambridge) is a Senior Scholar of the Fitzwilliam College.
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Preferred Method of Citation
Katja Kreft, “Plastic Times Call for Drastic Measures: Toward a Life-Cycle Approach to Plastic Pollution” (IJPIEL, 29 August 2022)
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