The grim legal regime for combating plastic pollution – myRepublica

Plastic pollution has affected all aspects of life on earth and has become a problem of the century with climate change and loss of biodiversity. Despite a large body of research showing the impacts of plastic on marine life and also the amount of plastic that humans consume due to food contamination, the production and use / consumption of plastic remains largely unregulated.

Roshani Giri

Once considered the greatest discovery for environmental protection from deforestation for packaging and paper bags, plastic has suddenly become the most problematic land pollution in less than 100 years. Despite the deep-rooted use of plastic in every aspect of modern life, unlike the regulation and subsequent success in phasing out ozone-depleting gases and mercury regulation, the regulation of plastic is patchy, diverse and more difficult because of its cheapness. , availability and penetration into life. International law regulates plastic as a pollutant that should be prevented from entering marine life in the group of all land-based pollutions, and its impact on biodiversity. The regulations deal specifically with where plastic ends up as waste, rather than the entire plastic life cycle.

This regulation of disposal in various instruments, although of the utmost importance, is not sufficient to deal with the scale and problems of plastic pollution that we face today. This is evident from the fact that although Nepal is a party to the United Nations Convention on the Law of the Sea (UNCLOS), no action has been taken to prevent pollution of rivers as a means of putting implement the obligations arising from UNCLOS. Besides the weak implementation regime, a major shortcoming in the current uneven plastic regulatory regime is that plastic production remains largely unregulated and therefore only provides a partial picture of plastic pollution and its solution. In fact, sometimes the international instrument itself becomes part of the problem rather than the solution due to its inability to provide a broader and clearer picture of regulation and not to treat plastic as an individual substance. .

The general provision of Article 207 of UNCLOS includes the obligation for States Parties to adopt laws and regulations to reduce and control plastic from entering the marine environment. Despite research showing that the majority of plastic in marine environments comes from a handful of countries, it is almost impossible to find a causal link between the polluter and the pollutant due to which attribution of responsibility becomes difficult. Art. 207 does not paint a picture of what laws should be, except that they should flow from internationally agreed rules and practices, and thus in effect calls for a state due diligence obligation.

Likewise, article 192 of UNCLOS creates an obligation for States Parties to protect and preserve the marine environment. This overriding obligation includes the protection of the marine environment against any pollutant. With article 193, these provisions (192 and 193) of the UNCLOS create a negative obligation (not to introduce plastic pollution into the marine environment) and a positive (duty to prevent private actors from introducing pollution). in the marine environment) which together form customary international law as enunciated by ITLOS in the South China Sea arbitration, and therefore binding even on non-parties to the Convention. The plastic problem is not limited to pollution that can be seen with the naked eye but penetrates through microplastic pollution of the marine environment, the consequences of which we do not yet know. In addition to the breakdown of plastic in the sea, the microplastic that reaches the marine environment from the use of various cosmetics including glitter, microplastic beads are also actually regulated by the art of UNCLOS. 207, 192 and 193.

Besides the plastic that ends up in the marine environment, those that remain on land also pose a significant pollution problem as they take hundreds of years to decompose and have a devastating impact on biodiversity as well as on nature itself. . A large number of marine and terrestrial beings lose their lives due to the consumption of plastic. Thus, regulating plastic not only to enter the marine environment but also the terrestrial environment is a challenge. The Basel Convention regulates plastic as a substance (pollutant) rather than its location. Thanks to a recent amendment, it included plastic waste (although in the list of non-hazardous waste) in its regulations and its system of prior informed consent which requires the prior informed consent of the receiving state. plastic waste for recycling. Although the Convention has classified plastic as a non-hazardous substance, the environmentally sound disposal regime is of particular importance both to ensure that plastic waste does not end up in a landfill or in the sea. Basel Convention on waste minimization, proximity to disposal and an absolute ban on sending waste to certain locations is crucial in regulating the disposal of plastic waste.

Plastic pollution has affected all aspects of life on earth and has become a problem of the century with climate change and loss of biodiversity. Despite a large body of research showing the impacts of plastic on marine life and also the amount of plastic that humans consume due to food contamination, the production and use / consumption of plastic remains largely unregulated. This leaves a weak regulatory regime for plastic limited to its movement and disposal. Indeed, the regulation of the entire life of plastic is no longer a question of precaution because the impact of plastic on the environment, biodiversity and human health is supported by scientific research, but a question of prevention.

However, the absence of a general legal regime governing the global life cycle of plastic so as to phase out certain production and consumption of plastic is a missing link between the existing legal instruments regulating plastic in terms of location and the regulation of plastic. plastic. as a substance whose entire life cycle must be regulated by law. Elizabeth Kirk and Naporn Popattanachai’s argument for a treaty to regulate and indeed phase out petroleum-based plastic would initiate regulation of plastic production and complement the existing (albeit bleak) management of the plastic already produced. . So unless we regulate plastic at the source as well as possible alternatives in the Ozone Depletion Convention’s approach to targeting the production and consumption of ozone-depleting sources , despite the problem recognized and addressed by existing international instruments, the result will remain grim.

Plastic pollution as we see it today needs a much more dedicated diet if we are to really deal with it. Neither laws and courts (national or international) alone nor the activists who dedicate their lives to it can solve this problem until we address the liability of the manufacturers who profit from the mass production of plastic and leave it to consumers and to the government. to treat it as waste. However, such an approach is unsustainable and inadequate to really tackle the great problem at hand. Therefore, the law, the courts as well as all relevant stakeholders must strive to make the production of plastics more environmentally responsible if we are truly prepared to tackle this problem together.

Bryce K. Locke