plastic pollution regulation

No global treaty or convention regulates the plastic cycle yet but this will change in the coming years. The United Nations Environment Assembly, the world's top regulatory body for the environment, started negotiations for a new treaty regulating the production, distribution and end of life stages of the material in 2022. For the latest news on this process see here.

It took a long time for plastic to make its way into any international texts. The outcome Declaration of the 1972 UN Conference on the Human Environment made no specific mention of plastic despite the fact that governments were already beginning to show concern about the impact of waste on the marine environment. Even 20 years later, at the Rio Earth summit in 1992, plastic waste was only mentioned twice in the 351 pages of Agenda 21. Chapter 17 (dedicated to the ocean) recognises the major contaminants to the marine environment as "sewage, nutrients, synthetic organic compounds, sediments, litter and plastics, metals, radionuclides, oil/hydrocarbons and polycyclic aromatic hydrocarbons" while chapter 21 on the management of solid wastes calls for the "transfer of recycling technologies, such as machinery for reusing plastics, rubber and paper, within bilateral and multilateral technical cooperation and aid programmes". At that point, plastic was clearly still far from being on the main agenda of the meeting.

The Future We Want, the outcome document of Rio+20, the Sustainable Development Conference held in 2012, also failed to lend much importance to plastic, although it does express concern at the effect on the health of the ocean and marine biodiversity by marine pollution "including marine debris, especially plastic, persistent organic pollutants, heavy metals and nitrogen-based compounds, from a number of marine and land-based sources, including shipping and land run-off". More importantly, the document recognizes "the importance of adopting a life-cycle approach and of further development and implementation of policies for resource efficiency and environmentally sound waste management." The document commits the signatories "to further reduce, reuse and recycle waste (the 3Rs) and to increase energy recovery from waste, with a view to managing the majority of global waste in an environmentally sound manner and, where possible, as a resource. Solid wastes, such as electronic waste and plastics, pose particular challenges, which should be addressed" and calls "for the development and enforcement of comprehensive national and local waste management policies, strategies, laws and regulations."

Only in the last few years has the United Nations taken clearer and stronger steps in the fight against plastic pollution. While still not named in the 2015 Sustainable Development Goals, SDG12 to 'Ensure sustainable consumption and production patterns' addresses responsible consumption, setting targets to reduce waste generation through prevention, reduction, recycling, and reuse, all of which can be clearly linked to the plastic industry. Although not legally binding in nature, the sustainable development goals provide States with clear targets to protect the marine and terrestrial environment from plastic pollution by taking a combination of SDG14 (Life below water), and in particular 14.1 'By 2025, prevent and significantly reduce marine pollution of all kinds, in particular from land-based activities, including marine debris and nutrient pollution', with SDG15 (Life on land) and SDG12.

General statements included in conference outcome documents, goals or declarations do of course fall into the collection of non-binding soft law, useful to a degree in terms of exerting moral pressure on a State but certainly not as a forceful tool in calling States to account for their pollution. We have UNCLOS, with its general obligations to protect and preserve the marine environment from pollution, MARPOL, which prohibits ships from dumping plastic into the marine environment and obliges ports to provide adequate reception facilities, the Convention on Biological Diversity with its obligation to assess and minimize adverse impacts on biodiversity and the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal, which addresses the waste export link of the plastics chain. The need for a comprehensive policy regulating the whole lifecycle of plastics couldn't be clearer!

This is where the United Nations Environment Assembly (UNEA) steps in. Established in 2012 at the United Nations Conference on Sustainable Development (Rio+20), it is the highest-level global decision-making body on the environment. Putting the environment on a level with peace, poverty, health and security, the other global issues addressed by the United Nations, the UNEA aims to achieve a coherent system of international environmental governance. The Assembly, which has a universal membership of the 193 UN Member States, addresses the critical environmental challenges facing the world today. It meets biennially to set priorities for global environmental policies and develop international environmental law. Through its resolutions and calls to action, the Assembly aims to catalyse intergovernmental action on the environment.

Since 2012 the Assembly has adopted four resolutions which are of relevance to marine plastics and microplastics, recognizing the extent of the problem and the urgent need for action:

• In 2014, UNEA1 adopted Resolution 1/6, which requested UNEP to put together an extensive study to identify sources and possible measures. Marine Plastic debris and microplastics: Global lessons and research to inspire action and guide policy change was released in 2016.

• At UNEA2, held in 2016, Resolution 2/11 called for an assessment of international, regional and sub-regional governance strategies and approaches, which UNEP presented in the document Combating marine plastic litter and microplastics: An assessment of the effectiveness of relevant international, regional and subregional governance strategies and approaches. This document concluded that "no global agreement exists to specifically prevent marine plastic litter and microplastics or provide a comprehensive approach to managing the lifecycle of plastics" and recommended the development of a new convention aimed to do so, suggesting that the negotiating process could take three to four years and that a new treaty could enter into force about four years later (this may seem a long time but international negotiations are not a simple process, think back to UNCLOS which took nine years to negotiate and a further 12 to enter into force).

• In 2017, UNEA3 passed Resolution 3/7, in which States committed to the long-term elimination of the discharge of litter and microplastics into the ocean, and established an ad hoc open-ended expert group (AHEG) on marine litter and microplastics with a mandate to explore barriers to combating marine litter, identify national, regional and international response options, together with their costs, benefits, feasibility and effectiveness, and look into the possibility of negotiating a new convention.

• Resolution 4/6, adopted by UNEA4 in 2019, extended the mandate of AHEG, to include exploring technical and financial resources and mechanisms and the effectiveness of an international response option.

The AHEG held meetings in Nairobi, Geneva, Bangkok and online to discuss ways to control marine litter, including through a new global plastics treaty. It considered possible approaches and obstacles to combating marine litter and microplastics in relation to resources, capacity development and technology transfer. In 2021, the AHEG produced a final report on its work putting forward a list of options for consideration by UNEA 5.2 in 2022, including providing support for national action plans and their implementation, strengthening existing instruments and drafting a new global instrument. UNEA 5.2 took the landmark decision to officially open negotiations for a new instrument on plastic on 2 March 2022.

Since 2016, UNEP has put together a useful collection of documents on the topic:

• Marine Plastic Debris & Microplastics: Global Lessons and Research to Inspire Action and Guide Policy Change

• Marine Litter Legislation: A Toolkit for Policymakers

• Combating marine plastic litter and microplastics: An assessment of the effectiveness of relevant international, regional and subregional governance strategies and approaches

• The State of Plastics

• Single-use Plastics: A Roadmap for Sustainability

• From Pollution to Solution: a global assessment of marine litter and plastic pollution

In the meantime, the lack of international regulation has left the development of regulatory policy to regional groups or individual States. A growing movement to introduce policy in order to phase out or ban single-use plastic has seen many States around the world taking up the challenge. In 2018 UNEP found that 127 States of the 192 countries reviewed had enacted some form of national legislation to address the problem of plastic bags and discovered a vast array of diverse policies in their research. However these individual policies usually only address one link in the plastic chain rather than the whole picture. 

Still lacking in most policy is a full lifecycle approach to the issue from up to downstream, looking at production and product design (upstream), consumer use (midstream), and waste management (downstream). This is where the new plastics instrument should come into play.