Reforming Technical and Financial Assistance for Environmental Protection: The Challenge of Plastic Pollution in the Ocean

June 17, 2021 • Public Law • 8 comments • 5 min read

Managing plastic waste is one of the biggest problems we face today, the severity and urgency of which is increasing. How can legal reforms, especially technical and financial assistance, address this?

Introduction

Seventy-nine per cent of all plastics produced end up in landfills and nature, including 12 million metric tons that pollute the oceans each year. Just the global usage of disposable COVID-19 protective gear shows that plastic waste is rising. The 2014 United Nations Environment Programme (UNEP) Valuing Plastic report estimates the natural capital cost of plastic usage is a staggering 75 billion USD per annum.

Managing plastic waste is one of the biggest environmental problems we face today. Plastic waste threatens biodiversity, food safety and quality, natural health in its broadest sense, and contributes to climate change. Despite rising scientific evidence showing the urgency of the problem, the international community has failed to globally regulate plastics.

Under the United Nations Convention on the Law Of the Sea (UNCLOS), States have the general obligation to protect and preserve the marine environment. This includes the obligation in Section XII to take all measures necessary “to prevent, reduce and control pollution of the marine environment, including from land-based sources...”. The Convention on Biodiversity and the Convention on Marine Pollution have similar obligations. All States thus have shared obligations to address environmental destruction, albeit that they are common but differentiated responsibilities.

That said, a 2018 UNEP Plastic Assessment Report concluded that “[n]o global agreement exists to specifically prevent marine plastic litter and microplastics or provide a comprehensive approach to managing the lifecycle of plastics”. It recommended redesigning the global governance framework to limit or eradicate plastic waste. An open ended working group examined the options.

The 2021-2022 Fifth Conference of the State Parties to the UN Environment Assembly (UNEA-5) gives States a unique opportunity to act on scientific data, expert recommendations and public opinion to regulate plastics, translating words into action. And the UNEP report provides many recommendations that States should pursue in this context, including the adoption of a plastics treaty, which could help to prevent plastic waste accumulating in the terrestrial and marine environment. To ensure effective implementation of these recommendations, strong financial (FA) and technical assistance (TA) mechanisms that apply to the entire plastics lifecycle are necessary. To this end, we make three proposals for UNEA-5 to consider.

1. Establish a Progressive Global Plastic Fund

FA and TA are complementary. UNCTAD characterises FA and TA as efforts to improve the terms and conditions of aid. We therefore recommend treaty provisions that oblige progressive contributions to a Global Plastic Fund. The fund should have a dedicated TA window as well as an FA window aimed at opportunities to support investments in plastic clean-up initiatives and technological development of plastic alternatives.

A central fund is needed because current FA mechanisms are fragmented and not specific to the plastic problem. The fund can draw inspiration from best practice examples of other environmental protection FA mechanisms. Such examples include the Basel Convention’s Plastic Waste Partnership (PWP) and several smaller UNEP managed TA funds. However, these examples are relatively small in size. To tackle a 75 billion USD a year problem, an appropriately sized TA & FA mechanism is needed.

In order to engage the responsibilities of all State parties, their contributions to the Fund should be binding. They should also be progressive: the share of contributions being dependent on a State’s GDP.

The Fund’s TA window should assist States in streamlining plastic regulation and taxation policies on plastics. It should also facilitate and encourage technology transfer to increase a transition towards alternatives to plastics. This would help States meet their obligations under existing international law and facilitate the engagement of all stakeholders in eliminating the plastic problem. Good examples of policies tackling plastic pollution are found at the domestic level in the Global South (Kenya’s plastic policy under their Vision 2030) as well as the Global North (EU plans for a plastic tax), but such policies are not yet widespread. Part of the revenues of such taxation policies could serve as contributions to the Fund, automating the contribution system and linking the Fund’s size to the global usage of plastics.

2. Establish an International Plastic Management Organisation (IPMO)

In addition to merely establishing a plastic-specific international organisation, as was recommended by the UNEP assessment report, the architecture and its mandate should be ambitious and innovative.

The IPMO’s goal should be to overcome the current fragmentation of conventions, guidelines, voluntary obligations, lack of standards and limited implementation of binding obligations, such as those flowing from UNCLOS. The IPMO should be inclusive and focused on technology sharing and sustainable knowledge building.

The IPMO should be managed by a multi-stakeholder board, representing developed and developing States, as well as the public and private sector, nongovernmental organisations (like GAIA) and academics.

The IPMO should have four principal objectives:

Set international standards by developing comprehensive plastic lifecycle regulatory, certification and monitoring guidelines, which operationalise State obligations under UNCLOS’ article 207.
Assist in implementing international standards in regional and national laws and regulations, including embedding those standards in international (and bilateral) trade agreements, by managing and coordinating a legal aid department (e.g. cooperating with UN DOALAS).
Manage and coordinate all relevant plastic lifecycle FA mechanisms under the Global Fund discussed above.
Manage and coordinate a comprehensive scientific TA office charged with coordinating a global plastic eradication research agenda, uniform tracking and monitoring of plastic waste, coordinating a capacity building programme and managing an expert roster to support the aforementioned functions.

3. Modifying Trade and Investment Obligations

UNEA-5 can strengthen multilateral responsibilities by adopting recommendations to modify bilateral investment treaties and free trade agreements with provisions that regulate the plastics lifecycle. States could impose import and export tariffs on plastics, agree to mutually contribute a percentage of tariff income to the Global Plastic Fund, establish technology transfer investment mechanisms stimulating environmentally-friendly alternatives to plastics, and ensure that their industries adhere to the extended producer responsibility principle and follow the 6R approach (reduce, redesign, refuse, reuse, recycle, recover). WTO minimum tariffs on plastic products could also be agreed upon. And products using plastic alternatives should be incentivised, such as by enjoying preferential market access.

Conclusion

We need to urgently and effectively address the problem of plastic pollution in the oceans. It is increasing every day, and its long-term impact on the environment and human health is likely to be very detrimental. UNEA-5 is a rare opportunity for decisive, bold and truly global action. In this context, we argue that the proposals outlined in this post would help to meet the challenge.