The Ocean Cleanup (TOC) recently signed an agreement with the State of the Netherlands concerning the legal status of its activities, carried out on the high seas. The Leiden Advocacy Project on Plastic (LAPP), a pro bono initiative within Leiden Law School dealing with legal questions on plastics, carried out research that may have contributed to the conclusion of this covenant.
The Ocean Cleanup was founded in 2013 by the Dutch engineering student Boyan Slat, and is registered as a foundation governed by Dutch law. Its aim is to rid the world’s oceans of plastic by developing advanced technologies. The final device developed by TOC consists of a 600-metre long floating barrier, with a skirt attached below which enables it to collect floating debris in the high seas. Every few months, a vessel will remove the collected plastic. TOC recently announced that its first cleaning operation will start on 8 September 2018, when the device will be deployed in the Great Pacific Garbage patch off the coast of San Francisco.
LAPP was commissioned by TOC to conduct legal research on the definition of marine scientific research (MSR), and the question whether and how TOC could be labelled as such. We found in our report that to date no explicit legal definition of MSR existed. The United Nations Convention on the Law of the Sea (UNCLOS), however, as well as case law have established several criteria that have to be fulfilled. Firstly, the purpose of the activity carried out on the high seas must be peaceful and non-commercial. Furthermore, it must contribute to the knowledge of the marine environment, and a scientific method needs to be applied. We found that TOC might fulfil these criteria and, if deemed beneficial for its activities, it could hence strive to conduct MSR under a state’s flag.
On 6 June, TOC concluded an agreement with the Netherlands, represented by Stientje van Veldhoven, the State Secretary for Infrastructure and Water Management, allowing TOC to carry out its activities on the high seas under the Dutch flag. On account of the system’s uniqueness, the Parties found that it is not immediately apparent what the applicable regulations are, and concluded that no ready-made legal framework exists. The Netherlands and TOC hence decided to base their agreement on the provisions of Part XIII of the UNCLOS, by applying the UNCLOS provisions on MSR by analogy.
Employing the MSR regime by analogy entails a set of consequences for the project. Firstly, since MSR can only be conducted by states and not private entities, the Netherlands will be the main negotiator for TOC in international relations and, if necessary, will promote and facilitate contact between TOC and other States. The Netherlands is thus also responsible for ensuring that other States are informed of TOC’s activities. Furthermore, in the event of damage being caused to third parties due to undertakings by TOC, the Netherlands will be liable to a third party. However, the agreement provides for ways the government can recover compensation from TOC.
We are happy that our research might have contributed to this result and are looking forward to the launch of the first clean up system in September. Our memo and other LAPP publications are available at the LAPP website.