DOI: 10.1111/reel.

12258

SPECIAL ISSUE ARTICLE

Advancing the international regulation of plastic pollution

beyond the United Nations Environment Assembly resolution
on marine litter and microplastics

Giulia Carlini | Konstantin Kleine

Correspondence
Emails: gcarlini@ciel.org;
Plastic pollution has received growing recognition as an issue of global concern,
konstantin.kleine@graduateinstitute.ch including the question of how to regulate it at the international level. Despite the
existence of many instruments relevant to marine plastic litter, there is no interna-
tional agreement that focuses primarily on combating plastic pollution. While the
annual global rate of plastic production is growing, no international instrument is
addressing plastic across its full life cycle, from production to consumption to dis-
posal. This article describes the role of the United Nations Environment Assembly
(UNEA) and the evolution of its resolutions on marine plastic pollution. UNEA's lat-
est resolution on marine litter and microplastics is paving the way for the global
community to improve the current international framework and address the ‘plastic
crisis’. This opens questions on the approach and scope of a new framework. The
article suggests that framing the problem as one of ‘marine litter’ limits the scope
of possible solutions to waste management. Reframing the subject from a marine lit-
ter problem to a broader plastic pollution issue presents an opportunity to develop
a comprehensive approach and, therefore, a more effective global framework that
encompasses not only plastic litter, but also the reduction of plastic production and
consumption.

1 | INTRODUCTION
The claim that if we were to pick a random object from the ocean
30 years from now, we would more likely have plastic than fish in
our hands has catalysed international attention for the issue of mar-
ine plastic pollution.1 Between approximately 5 and 13 million
tonnes of plastic are estimated to contaminate the oceans each year,
1
Ellen MacArthur Foundation, ‘The New Plastics Economy: Rethinking the Future of Plas-
tics’ (2016); see for the critique of this assumption: L Hornak, ‘Will There Be More Fish or
Plastic in the Sea in 2050?’ (BBC News, 15 February 2016); JR Jambeck et al, ‘Plastic
Waste Inputs from Land into the Ocean’ (2015) 347 Science 768; S Jennings et al, ‘Global‐
scale Predictions of Community and Ecosystem Properties from Simple Ecological Theory’
(2008) 275 Proceedings of the Royal Society of London B: Biological Sciences 1375; S Jen-
nings and K Collingridge, ‘Predicting Consumer Biomass, Size–Structure, Production, Catch
Potential, Responses to Fishing and Associated Uncertainties in the World's Marine Ecosys-
tems’ (2015) 10 PLoS One e0133794; RA Watson, TJ Pitcher and S Jennings, ‘Plenty More
Fish in the Sea?’ (2017) 18 Fish and Fisheries 105.
roughly the equivalent of a full garbage truck every minute.2 If this
business‐as‐usual scenario continues unabated, the ocean might, by
weight, contain more plastic than fish by 2050.3
The marine aspect of plastic pollution, in particular, has been
attracting major campaigns, media attention and inter‐State action:
in 2017, ‘the UN declare[d] war on ocean plastic’, launching a cam-
paign called ‘#CleanSeas’,4 and the Group of Twenty (G20) agreed
on the ‘G20 Action Plan on Marine Litter’;5 in 2018, several States
2
Jambeck et al (n 1); R Geyer, JR Jambeck and KL Law, ‘Production, Use, and Fate of All
Plastics Ever Made’ (2017) 3 Science Advances e1700782; Ellen MacArthur Foundation
(n 1) 29.
3
Ellen MacArthur Foundation (n 1) 28.
4
‘UN Declares War on Ocean Plastic’ (UN Environment, 23 February 2017) <http://www.
unenvironment.org/news-and-stories/press-release/un-declares-war-ocean-plastic-0>.
5
G20, ‘G20 Action Plan on Marine Litter’ (8 July 2017) <https://www.g20germany.de/Con
tent/DE/_Anlagen/G7_G20/2017-g20-marine-litter-en.pdf?__blob=publicationFile&v=4>.

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234 | wileyonlinelibrary.com/journal/reel RECIEL. 2018;27:234–244.

CARLINI AND KLEINE
announced cooperative initiatives to tackle ocean plastic pollution,
such as the Commonwealth Clean Oceans Alliance,6 led by the
United Kingdom and Vanuatu, and the Group of Seven (G7) Ocean
7
Plastics Charter.
However, marine plastic pollution is only a chapter, albeit an
important one, of the much larger story of plastic pollution. Erik Sol-
heim, Executive Director of the United Nations Environment Pro-
gramme (UNEP), declared plastic pollution as ‘a global emergency
8
affecting every aspect of our lives’. The theme for World Environ-
ment Day 2018 – ‘Beat Plastic Pollution’ – further illustrates the
increasing awareness of plastic pollution among the international
9
community.
While the visibility of plastic floating in the oceans or lying on
beach surfaces contributes to raising global attention, the quantifica-
10
tion of plastics in the oceans suffers major underestimations, with
11
over two‐thirds of ocean plastics remaining on the seabed. More-
over, plastic pollution is not just a marine issue, and using terms such
as ‘marine debris’ or ‘marine litter’ risks excluding the upstream
sources of the pollution, that is the massive production of plastic, as
well as its less visible impacts. Other aspects of plastic pollution, such
as its hazardous chemical components, are not always as evident:
plastics and microplastics also affect water, soil and air quality.12
Moreover, the plastic littering the oceans is just a portion of the
negative impact that plastic has on the environment. Plastic is almost
entirely produced from fossil fuels, thus the impact of plastic pollu-
tion does not start in the oceans, but results from raw material
extraction and plastic production, and use, across the entire plastic
life cycle.
Despite the rising global awareness of plastic pollution, plastic
production is expected to grow further.13 Plastic is almost entirely
produced from fossil feedstocks: oil, natural gas and coal.14 Because
the extraction of fossil fuels and the production of plastics are
‘Commonwealth Unites to End Scourge of Plastic’ (15 April 2018) <https://www.gov.
6
uk/government/news/commonwealth-unites-to-end-scourge-of-plastic>.
7
G7, ‘Ocean Plastics Charter’ (9 June 2018) <https://g7.gc.ca/en/official-documents/charle
voix-blueprint-healthy-oceans-seas-resilient-coastal-communities/>.
8
‘India to Host World Environment Day 2018’ (27 February 2018) <http://worldenvironme
ntday.global/en/news/india-host-world-environment-day-2018>.
9
ibid.
10
AL Andrady, ‘Microplastics in the Marine Environment’ (2011) 62 Marine Pollution Bul-
letin 1596.
11
S Chiba et al, ‘Human Footprint in the Abyss: 30 Year Records of Deep‐sea Plastic Deb-
ris’ (2018) 96 Marine Policy 204; SB Borrelle et al, ‘Opinion: Why We Need an Interna-
tional Agreement on Marine Plastic Pollution’ (2017) 114 Proceedings of the National
Academy of Sciences of the United States of America 9994.
12
F Gallo et al, ‘Marine Litter Plastics and Microplastics and their Toxic Chemicals Compo-
nents: The Need for Urgent Preventive Measures’ (2018) 30 Environmental Sciences Eur-
ope 13.
13
PG Ryan, ‘A Brief History of Marine Litter Research’ in M Bergmann, L Gutow and M
Klages (eds), Marine Anthropogenic Litter (Springer 2015) 1; Plastics Europe, ‘The Plastic
Industry’ (20 August 2016) <https://committee.iso.org/files/live/sites/tc61/files/The%20Pla
stic%20Industry%20Berlin%20Aug%202016%20-%20Copy.pdf>.
14
Plastics Europe, ‘Plastics – The Facts 2017’ (2017) 8 <https://www.plasticseurope.org/appli
cation/files/5715/1717/4180/Plastics_the_facts_2017_FINAL_for_website_one_page.pdf>;
Center for International Environmental Law (CIEL), ‘Fossils, Plastics, & Petrochemical Feed-
stocks’ (2017) <http://www.ciel.org/wp-content/uploads/2017/09/Fueling-Plastics-Fossils-
Plastics-Petrochemical-Feedstocks.pdf>; Ellen MacArthur Foundation (n 1) 27.
| 235
interlinked, plastic production is geographically concentrated in areas
of fossil fuel extraction, and it is dependent on the costs of these
materials.15 In addition, major fossil fuel producers own plastics com-
panies, and major plastics producers own oil and gas companies.16
For example, the abundance, and consequent affordability, of natural
gas in the United States has given the region a competitive advan-
tage over other plastic producers based in regions that rely more on
oil‐based feedstocks,17 and this advantage is driving major invest-
ments. The American Chemistry Council has announced US$194 bil-
lion worth of investment linked to shale gas in the United States
alone, on more than 300 new facilities or expansion projects by
2025.18 Moreover, the global production capacity for ethylene and
propylene, the most important base chemicals to produce plastic, is
expected to increase by 33–36 percent by 2025.19
Plastic pollution is ubiquitous, persistent and has transboundary
impacts,20 and the question of its regulation has emerged as a new
global challenge.21 As the international community moves forward to
tackle plastic pollution at the global level, major gaps remain to be
addressed, starting from the absence of a global instrument or insti-
tution with a mandate that covers marine litter, or better, plastic pol-
lution ‘upstream, from the extraction of raw materials, design and
use phases of plastic polymers and additives to final treatment and
disposal’.22
2 | INTERNATIONAL INSTRUMENTS
RELATED TO PLASTIC POLLUTION
While a considerable number of international instruments apply, or
could apply if fully implemented, to plastic pollution and marine plas-
tic litter, none of the instruments focuses primarily on marine plastic
pollution.23 International legal regimes, encompassing both legally
15
CIEL (n 14).
16
ibid.
17
American Chemistry Council, ‘The Rising Competitive Advantage of U.S. Plastics’
(2015) <https://plastics.americanchemistry.com/Education-Resources/Publications/The-Rising-
Competitive-Advantage-of-US-Plastics.pdf>.
18
American Chemistry Council, ‘U.S. Chemical Investment Linked to Shale Gas: $194 Billion
and Counting’ (2018) <https://www.americanchemistry.com/Shale_Gas_Fact_Sheet.aspx>.
19
Mitsubishi Chemical Techno‐research, ‘Global Supply and Demand of Petrochemical Prod-
ucts Relied on LPG as Feedstock’ (7 March 2017) <http://www.lpgc.or.jp/corporate/infor
mation/program5_Japan2.pdf>; CIEL, ‘How Fracked Gas, Cheap Oil, and Unburnable Coal
are Driving the Plastics Boom’ (2017) <http://www.ciel.org/wp-content/uploads/2017/09/
Fueling-Plastics-How-Fracked-Gas-Cheap-Oil-and-Unburnable-Coal-are-Driving-the-Plastics-
Boom.pdf>.
P Villarrubia‐Gómez, SE Cornell and J Fabres, ‘Marine Plastic Pollution as a Planetary
20
Boundary Threat – The Drifting Piece in the Sustainability Puzzle’ (2018) 96 Marine Policy
213.
21
L Jeftic et al, Marine Litter: A Global Challenge (Regional Seas, UNEP 2009).
22
UNEP ‘Combating Marine Plastic Litter and Microplastics: An Assessment of the
Effectiveness of Relevant International, Regional and Subregional Governance Strategies
and Approaches’ UN Doc UNEP/AHEG/2018/1/INF/3 (11 April 2018) 12 (UNEP ‘Assess-
ment Report’); for the gaps in the scientific assessment of marine plastic pollution, see also
E Mendenhall, ‘Oceans of Plastic: A Research Agenda to Propel Policy Development’
(2018) 96 Marine Policy 291.
UNEP ‘Assessment Report’ (n 22).
23
236 | CARLINI
binding and non‐binding instruments, such as the 2030 Agenda for
24 25
Sustainable Development or the Honolulu Strategy, have had a
limited impact on (plastic) pollution in the oceans.26 When compared
with other fields of environmental regulations, what is particularly
notable is the complete lack of binding targets for plastic pollution
reduction and compulsory timelines.
A number of binding instruments address vessel‐sourced pollu-
tion. This notably includes the MARPOL Convention, with its
Annex V,27 and the London Convention28 and its Protocol,29 the lat-
ter devised to curb intentional dumping. While these instruments
have been relatively successful, although partly hampered in their
30
implementation, vessel‐sourced pollution represents only a small
31
part of total plastic pollution, hence these instruments are limited
in addressing the entirety of the issue of marine plastic pollution,
particularly when assessed from a plastic life cycle perspective.
Other instruments apply to marine pollution more broadly by
addressing pollution irrespective of the source, thereby including
land‐sourced pollution. Noteworthy, the United Nations Convention
on the Law of the Sea (UNCLOS) is the only instrument specific to
marine pollution which includes regulations on land‐sourced pollu-
32
tion. Plastic pollution could fall under either of the following two
provisions: Articles 194 or 207 UNCLOS. Article 194 UNCLOS
obliges States to take measures to prevent, reduce and control pollu-
tion of the marine environment, but plastics only fit into the list of
specific kinds of pollutions States shall combat if they are toxic,
UNGA ‘Transforming Our World: The 2030 Agenda for Sustainable Development’ UN
24
Doc A/RES/70/1 (25 September 2015).
25
UNEP and National Oceanic and Atmospheric Administration (NOAA), ‘The Honolulu
Strategy: A Global Framework for Prevention and Management of Marine Debris’ (25
March 2011) <http://marinelitternetwork.engr.uga.edu/global-projects/strategy/>; further,
the main decision taken under the Convention on Biological Diversity (adopted 5 June
1992, entered into force 29 December 1993) 1760 UNTS 79 (CBD) relating to marine pol-
lution is not binding. See CBD, ‘Decision XIII/10, Addressing Impacts of Marine Debris and
Anthropogenic Underwater Noise on Marine and Coastal Biodiversity’ UN Doc CBD/COP/
DEC/XIII/10 (10 December 2016).
26
A Trouwborst, ‘Managing Marine Litter: Exploring the Evolving Role of International and
European Law in Confronting a Persistent Environmental Problem’ (2011) 27 Utrecht Jour-
nal of International and European Law 4, 17–18; see also P Dauvergne, ‘Why is the Global
Governance of Plastic Failing the Oceans?’ (2018) 51 Global Environmental Change 22; and
EA Kirk and N Popattanachai, ‘Marine Plastics: Fragmentation, Effectiveness and Legitimacy
in International Lawmaking’ (2018) 27 Review of European, Comparative and International
Environmental Law 222.
27
International Convention for the Prevention of Pollution from Ships (adopted 2 November
1973, entered into force, as modified by the Protocol of 1978, 2 October 1983) 1340
UNTS 184.
28
Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other
Matter (adopted 29 December 1972, entered into force 30 August 1975) 1046 UNTS 120.
29
1996 Protocol to the Convention on the Prevention of Marine Pollution by Dumping of
Wastes and Other Matter (adopted 17 November 1996, entered into force 24 March 2006)
36 ILM 1.
30
P Aussendorf et al, ‘Coast Guard: Enforcement under MARPOL V Convention on Pollu-
tion Expanded, Although Problems Remain’, Report to Congressional Requesters RCED‐95‐
143 Letter 2 (1995) <https://www.gpo.gov/fdsys/pkg/GAOREPORTS-RCED-95-143/html/
GAOREPORTS-RCED-95-143.htm>; Trouwborst (n 26) 17.
31
D VanderZwaag and A Powers, ‘The Protection of the Marine Environment from Land‐
based Pollution and Activities: Gauging the Tides of Global and Regional Governance’
(2008) 23 International Journal of Marine and Coastal Law 423, 423–424.
32
United Nations Convention on the Law of the Sea (adopted 10 December 1982, entered
into force 16 November 1994) 1833 UNTS 3.
AND KLEINE
harmful or noxious substances.33 Article 207 UNCLOS requires
States to take measures to prevent, reduce and control pollution
from land‐based sources. The reach of the latter provision is limited
by the reference to ‘internationally agreed rules, standards and rec-
ommended practices and procedures’. Hence, even though UNCLOS
profits from a sophisticated compliance mechanism with the Interna-
tional Tribunal for the Law of the Sea, this gap in addressing plastic
has, together with the rather broad and unspecific obligations of
Article 207 UNCLOS, prevented UNCLOS from substantially altering
the course of the plastic pollution issue.
In addition, other potentially applicable instruments have either
failed to achieve a significant number of ratifications,34 or are only
applicable to certain chemicals used in the production of plastics,35
specific plastics or plastic additives that are considered hazardous.36
Binding instruments with a primary purpose of the protection of
specific species37 or biodiversity38 might be applicable to marine
plastic debris, but the relevant provisions or subsequent decisions
relating to plastic are non‐binding.39 While it has been suggested to
either expand existing international binding instruments, like the
Basel Convention on the Control of Transboundary Movements of
Hazardous Wastes and their Disposal, to specifically address plas-
tics,40 or to include plastics in international instruments presently at
the negotiation stage,41 these attempts would in all likelihood fall
short of providing a comprehensive legal solution.42
33
ibid art 194(3)(a).
34
United Nations Convention on the Law of the Non‐navigational Uses of International
Watercourses (adopted 21 May 1997, entered into force 17 August 2014); see for the con-
vention also L Finska and JG Howden, ‘Troubled Waters – Where is the Bridge? Con-
fronting Marine Plastic Pollution from International Watercourses’ (2018) 27 Review of
European, Comparative and International Environmental Law 245.
35
Stockholm Convention on Persistent Organic Pollutants (adopted 22 May 2001, entered
into force 17 May 2004) 2256 UNTS 119.
36
Basel Convention on the Control of Transboundary Movements of Hazardous Wastes
and their Disposal (adopted 22 March 1989, entered into force 5 May 1992) 1673 UNTS
126.
37
United Nations Agreement for the Implementation of the Provisions of the United
Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conserva-
tion and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (adopted
4 August 1995, entered into force 11 December 2001) 2167 UNTS 88.
38
CBD (n 25).
39
Decision XIII/10 (n 25).
UNEP ‘Report on Possible Options Available under the Basel Convention to Further
40
Address Marine Plastic Litter and Microplastics’ UN Doc UNEP/CHW/OEWG.11/INF/22 (8
May 2018); UNEP ‘Application by Norway to Amend Annex IX to the Basel Convention
and Addendum’ UN Doc UNEP/CHW/OEWG.11/INF/36 (9 August 2018).
R Tiller and E Nyman, ‘Ocean Plastics and the BBNJ Treaty – Is Plastic Frightening
41
Enough to Insert Itself into the BBNJ Treaty, or Do We Need to Wait for a Treaty of its
Own?’ (2018) Journal of Environmental Studies and Sciences 1.
42
The Basel Convention Secretariat found the Basel Convention lacking in ‘indicators, tar-
gets, timelines or, since 2016, mandatory reporting, for reductions in waste generation’; see
UNEP ‘Report on Possible Options Available under the Basel Convention’ (n 40) para 23;
see also K Raubenheimer and A McIlgorm, ‘Can the Basel and Stockholm Conventions Pro-
vide a Global Framework to Reduce the Impact of Marine Plastic Litter?’ (2018) 96 Marine
Policy 285; the mandate for the proposed treaty on the protection of biodiversity in areas
beyond national jurisdiction does not mention plastic once; UNGA ‘International Legally
Binding Instrument under the United Nations Convention on the Law of the Sea on the
Conservation and Sustainable Use of Marine Biological Diversity of Areas beyond National
Jurisdiction’ UN Doc A/RES/72/249 (24 December 2017).
CARLINI AND KLEINE | 237

Even if one subscribes to Daniel Bodansky's ‘thirty‐percent starts by referring to ‘The Future We Want’50 – the outcome docu-
solution’ 43
– which posits that international law can only con- ment of the United Nations Conference on Sustainable Development –
tribute about 30 percent of the solution to any given which expresses concern about ‘marine pollution, including marine
environmental issue – it must be concluded that international law, debris, especially plastic’.51 The resolution's preamble concludes by
at present, is not even close to contributing 30 percent of the noting the serious impact that marine litter can have on: (i) the marine
solution to the marine plastic pollution issue.44 Closing this gap environment; (ii) fisheries, tourism and the economy; and (iii) potential
would require addressing plastic pollution regardless of the source risks to human health.52 Additionally, the resolution explicitly identifies
or its toxicity, and establishing binding caps or reduction targets both sea and land as the sources of plastic pollution.53
and timelines. 45
Throughout the resolution, the terms ‘debris’ and ‘litter’ are both
mentioned without distinguishing or defining them. However,
despite the concern expressed from the Business and Industry Major
3 | HOW THE UNITED NATIONS
Group on plastics being singled out over other forms of marine pol-
ENVIRONMENT ASSEMBLY (UNEA) IS
lution,54 plastic pollution emerged as a stand‐alone issue. Indeed, in
ADVANCING INTERNATIONAL REGULATION
the resolution, plastics are recognized as a ‘rapidly increasing prob-
OF PLASTIC POLLUTION
lem’,55 caused both by growing use and improper management and
disposal of plastic, as well as by the progressive fragmentation of
3.1 | The role of UNEA
plastic into microplastics.56 UNEA further recognized that microplas-
In 2013, the United Nations Environment Assembly (UNEA) tics are not only created by the fragmentation of plastic, but can also
became the successor of the UNEP Governing Council, whose derive from other sources, including from ‘industrial emissions and
mandate has promoted international cooperation and driven envir- sewage and run‐off from the use of products’ that already contain
46
onmental policies since 1972. UNEA inherited the universal mem- them.57
47
bership from the Governing Council, transforming it into the Developing what has been established in the resolution's pre-
policymaking body of the international community in environmental amble, the resolution further describes the impacts of plastic, espe-
issues. cially microplastics, on human health, acknowledging that toxic
Despite its resolutions not being legally binding, UNEA substances such as persistent organic pollutants (POPs) can be con-
benefits from its global membership and its openness to civil tained in microplastics.
society and other stakeholder participation, and is in a key pos- Due to their large surface‐to‐volume ratio, microplastics are par-
ition to influence and set the global environmental agenda and ticularly prone to absorb toxic substances, especially POPs, from sea-
contribute to the coherence of the international environmental water, thereby becoming ‘toxic time‐bombs’,58 which increases the
governance. transfer of these harmful substances into the marine environment.59
These substances are found in microplastics in much higher concen-
trations than in the surrounding seawater, making microplastics a
3.2 | UNEA‐1 resolution on marine plastic debris
vehicle for toxic substances, which may be ingested and enter the
and microplastics
marine food chain, further biomagnifying until ultimately reaching
In 2014, UNEP held its first UNEA (UNEA‐1), with one of its themes and affecting humans, and so leading to adverse effects on ‘biodiver-
being ‘Sustainable Development Goals and the Post‐2015 Develop- sity, marine ecosystems and human health’.60
ment Agenda, Including Sustainable Consumption and Production’.48
Led by a proposal from Norway, UNEA‐1 adopted, inter alia, a reso-
lution on ‘marine plastic debris and microplastics’.49 The resolution
50
UNGA ‘The Future We Want’ UN Doc A/RES/66/288 (27 July 2012).
51
ibid para 163.
52
UNEA Resolution 1/6 (n 49) preamble para 6.
43
D Bodansky, The Art and Craft of International Environmental Law (Harvard University 53
ibid.
Press 2011) 15–16.
54
UNEA‐1, ‘Business and Industry Intervention on Marine Debris’ (24 June 2014) <http://
44
Dauvergne (n 26) 29; Trouwborst (n 26) 18; UNEP ‘Assessment Report’ (n 22).
wedocs.unep.org/bitstream/handle/20.500.11822/14004/Business%20and%20Industry%
45
Dauvergne (n 26) 29. 20Intervention%20on%20Marine%20Debris.pdf?sequence=2&isAllowed=y>; B Antonich et
al, ‘UNEA Highlights: Tuesday, 24 June 2014’ (2014) 16 Earth Negotiations Bulletin 3.
46
UNGA ‘Change of the Designation of the Governing Council of the United Nations
Environment Programme’ UN Doc A/RES/67/251 (13 March 2013). 55
UNEA Resolution 1/6 (n 49) para 4.
47
UNGA ‘Report of the Governing Council of the United Nations Environment Programme 56
ibid.
on its Twelfth Special Session and the Implementation of Section IV.C, entitled “Environ- 57
ibid para 7.
mental Pillar in the Context of Sustainable Development”, of the Outcome Document of
the United Nations Conference on Sustainable Development’ UN Doc A/RES/67/213 (21 58
M Lloyd‐Smith and J Immig, ‘Contaminants in Marine Plastic Pollution: “The New Toxic
December 2012) para 4(b). Time‐bomb”’ (National Toxics Network 2016) 13.
48
UNEP ‘Report of the United Nations Environment Assembly of the United Nations 59
UNEA Resolution 1/6 (n 49) para 6.
Environment Programme (Nairobi, 23–27 June 2014)’ UN Doc A/69/25 (2014). 60
P Dauvergne, ‘The Power of Environmental Norms: Marine Plastic Pollution and the Pol-
49
United Nations Environment Assembly of the UNEP (UNEA) ‘Resolution 1/6, Marine Plas- itics of Microbeads’ (2018) 27 Environmental Politics 579, 583; see also UNEA Resolution
tic Litter and Microplastics’ UN Doc UNEP/EA.1/6 (27 June 2014). 1/6 (n 49) para 5.
238 | CARLINI AND KLEINE

Despite the emphasis on the precautionary approach and the The study further recommends strengthening the implementation
recognition of the need of urgent action by addressing plastics and and enforcement of existing agreements, both regional and interna-
microplastics ‘at source’,61 the resolution concentrates on waste‐ tional, and reviewing the existing frameworks with the aim of iden-
solutions approaches, identifying as risks, inter alia, the ‘inadequate tifying synergies, gaps, and regional and global solutions.72
62
management and disposal’ of plastics, and proposing as response International bodies that address marine plastic litter are also invited
actions the reduction of pollution through improved waste manage- to consider emerging issues such as microplastics and nanoplastics.
ment and clean ups.63 While the UNEA‐1 resolution on marine plastic debris and
The UNEA‐1 resolution further welcomes regional and interna- microplastics mentions the precautionary approach,73 the study goes
64
tional agreements and programmes, promotes action plans at the further by recommending the use of the precautionary principle,
national and regional level to reduce marine litter,65 and encourages including, inter alia, a ban or radical reduction of single‐use plastic
governments to act in a comprehensive manner, including with the items, the promotion of measures that reduce the use of plastics
66
enforcement of international agreements, indicating a possible (such as extended producer responsibility schemes), and incentivizing
coordinating role of UNEP in addressing (marine) plastic pollution at more sustainable production and consumption.74
the international level. With the development of plastic alternatives, the study warns
With regard to possible future work, member States requested that there is still a lack of an agreed definition of biodegradability in
UNEP to, inter alia, conduct a study on marine plastic debris and the marine environment, thus the labelling of ‘biodegradable’ prod-
microplastics to present at the second session of UNEA.67 The sec- ucts does not guarantee a decrease of ocean plastic, the absence of
retariats of other relevant international agreements, such as the con- harm from the physical impacts of plastic or the release of chemicals
ventions on chemicals and waste, and on biodiversity and species, in the environment.75
were also invited to contribute to the study, in an attempt to
achieve coordination between existing instruments.68 The study's
3.4 | UNEA‐2 resolution on marine plastic litter and
mandate was to identify: (i) key sources of marine plastic debris and
microplastics
microplastics; (ii) measures to prevent the accumulation and minimize
the level of microplastics in the marine environment; (iii) recommen- At UNEA‐2 in 2016, Norway played a leading role in advancing the
dations for urgent actions; and (iv) research needs on environmental process initiated at UNEA‐1 by proposing another resolution on mar-
and human health impacts.69 ine plastic debris – reframed as ‘marine plastic litter’76 – and
microplastics.77 Building on the previous resolution and on its man-
dated study, the UNEA‐2 resolution refers to the United Nations
3.3 | Progress between UNEA‐1 and UNEA‐2: A
General Assembly Resolution 70/235 on oceans and the law of the
study to guide policy change
sea,78 as well as to the 2030 Agenda for Sustainable Development,
The study requested by the UNEA‐1 resolution on marine plastic at the time recently adopted, and particularly to Sustainable Devel-
debris and microplastics was published in 2016 ahead of the second opment Goal 14 and its related first target, which aims to prevent
meeting of UNEA (UNEA‐2) under the title ‘Marine Plastic Debris and significantly reduce marine pollution, in particular from
and Microplastics: Global Lessons and Research to Inspire Action land‐based activities, by 2025.79
70
and Guide Policy Change’. As a short‐term solution, the study The resolution describes plastic litter and microplastics as a
identifies the improvement of waste collection, while highlighting ‘rapidly increasing serious issue of global concern’,80 adding that it
the relevance of prevention efforts. With respect to long‐term solu- ‘needs an urgent global response taking into account a product life‐
tions, it proposes the improvement of governance along with behav- cycle approach’.81 This would imply that international solutions
ioural and system changes, including better sustainable production
72
and consumption patterns.71 ibid.
73
UNEA Resolution 1/6 (n 49) para 8.
74
UNEP, Marine Plastic Debris and Microplastics (n 70) xiii.
61
UNEA Resolution 1/6 (n 49) para 8.
75
ibid xiv.
62
ibid para 2.
76
United Nations Environment Assembly of the United Nations Environment Programme
63
ibid para 8.
(UNEA) ‘Marine plastic [[debris] (NOR, USA del) (PAK, AUS keep) Litter (NOR, USA) (PAK
64 reserve) and (PAK)] (EU reserve to keep one agreeable word) (Change throughout the reso-
ibid preamble paras 3, 4, and operative paras 9, 10, 13.
65
lution) and microplastics’ UN Doc UNEP/EA.2/L.12 (23 May 2016).
ibid para 11.
66
77
UNEP ‘Report of the United Nations Environment Assembly of the United Nations Envir-
ibid para 17.
onment Programme, 2nd session (Nairobi, 23–27 May 2016)’ UN Doc A/71/25 (21 October
67
ibid paras 14, 15, 17–20. 2016).
68
ibid para 15. UNEA ‘Resolution 2/11, Marine Plastic Litter and Microplastics’ UN Doc UNEP/EA.2/
78

69 Res.11 (4 August 2016) preamble para 7.

ibid para 14.
79
70 ibid preamble para 6.
UNEP, Marine Plastic Debris and Microplastics: Global Lessons and Research to Inspire Action
80
and Guide Policy Change (UNEP 2016) (UNEP, Marine Plastic Debris and Microplastics). ibid para 1.
71 81
ibid xii. ibid.
CARLINI AND KLEINE
should not only address the disposal of plastic, but also its
production.
Furthermore, the UNEA‐2 resolution does not only recognize the
role and work of other bodies, such as the International Maritime
Organization and the Food and Agriculture Organization of the
United Nations,82 but it also paves the way for an improved interna-
tional framework, urging the strengthening of national, regional and
83
international measures. The resolution further identifies both the
prevention and the environmentally sound management of waste as
crucial measures necessary to successfully combat marine pollution
in the long term. Prevention is an implicitly recurring theme, with
the call on member States to establish and implement policies,
frameworks and measures that are consistent with the waste hier-
archy.84 The waste hierarchy establishes that prevention has priority
in the ‘pyramid of waste policies and legislations’, followed by
reduction through reuse, recycling, recovery and disposal.85
The UNEA‐2 resolution contributed to sowing the seeds for a
global discussion on international governance strategies to address
marine pollution and the plastic crisis. In the resolution, UNEP was
requested to develop ‘an assessment of the effectiveness of relevant
international, regional and subregional governance strategies and
approaches to combat marine plastic litter and microplastics taking
into consideration the relevant international, regional and sub-
regional regulatory frameworks and identifying possible gaps and
86
options for addressing them’.
3.5 | Progress between UNEA‐2 and UNEA‐3: The
assessment of governance strategies
The assessment ‘Combating Marine Plastic Litter and Microplastics:
An Assessment of the Effectiveness of Relevant International,
Regional and Subregional Governance Strategies and Approaches’,87
presented at the third meeting of UNEA in 2017 (UNEA‐3), reviews
18 international instruments and 36 regional instruments, and identi-
fies numerous gaps in global governance, as well as three response
options. The international instruments that are analysed in the report
are categorized into three groups, according to the main orientation
of their mandates: ‘pollution’ agreements, ‘biodiversity and species’
agreements and ‘chemicals and waste’ agreements. 88
The first gap in the international governance is the lack of a glo-
bal institution whose mandate focuses on the coordination of exist-
ing efforts, and the management of the marine plastic litter and
microplastics across its life cycle, ‘upstream from the extraction of
82
UNEA Resolution 2/11 (n 78) paras 14, 16.
83
ibid para 6.
84
ibid para 7.
85
Directive 2008/98/EC of the European Parliament and of the Council of 19 November
2008 on waste and repealing certain Directives [2008] OJ L312/3; M Hyman et al, Guideli-
nes for National Waste Management Strategies: Moving from Challenges to Opportunities
(2015).
86
UNEA Resolution 2/11 (n 78) para 21.
87
UNEP ‘Assessment Report’ (n 22).
88
ibid 25ff.
| 239
raw materials, design and use phases of plastic polymers and addi-
tives to final treatment and disposal’.89 Second, there is a lack of
globally binding standards to mitigate plastic pollution, in particular
plastic waste originating from land‐based sources.90 The assessment
goes further in identifying gaps in the development of legally binding
agreements in strategic regions for the managing of land‐based pol-
lution, and a broader fragmented coverage of the existing agree-
ments, not only on the high seas, but also on internal water and
watersheds.91
Among other gaps, the potential risks to human health are insuf-
ficiently recognized at the international level, especially the impacts
of micro‐ and nanoplastics, with poor implementation of the precau-
tionary principle; additionally, the widespread disregard for due dili-
gence and the polluter pays principle by the relevant industry
sectors lead to an externalization of the costs of pollution.92
The assessment identifies three governance strategy options to
combat marine litter and microplastics: (1) the protraction of the status
quo, which is not recommended; (2) the revision and expansion of the
mandate of the existing frameworks in order to strengthen coordin-
ation of the existing institutions that address marine litter and
microplastics, establishing an umbrella mechanism at the international
level, as well as the addition of globally harmonized commitments
from industry; and (3) the development of a new binding international
architecture.93 Options (2) and (3) are not mutually exclusive, but can
be implemented in a parallel or complementary approach.
The conclusion of the assessment expresses the need to ‘investi-
gate pollution upstream’,94 indicating that this is ‘more cost‐effective
than mitigation and removal efforts downstream’.95 The develop-
ment of solutions should apply the waste hierarchy, described with
the ‘6Rs: Reduce, Redesign, Refuse, Reuse, Recycle and Recover’.96
The assessment indeed recommends to UNEA‐3 to implement gov-
ernance solutions that have a ‘holistic lifecycle approach’.97
3.6 | UNEA‐3 resolution on marine litter and
microplastics
In December 2017, member States met for the third UNEA
(UNEA‐3).98 Norway, building on the previous resolutions on marine
plastic pollution, championed the adoption of a resolution on marine
89
ibid 12.
90
ibid.
91
ibid.
92
ibid 12, 13; 41–43.
93
ibid 119ff.
94
ibid 150.
95
ibid 152.
96
ibid.
97
ibid 150.
98
UNEP ‘Report of the United Nations Environment Assembly of the United Nations
Environment Programme, 3rd session (Nairobi, 4–6 December 2017)’ UN Doc A/72/25
(21 March 2018).
240 | CARLINI
litter and microplastics.99 The proponents intended to underline
‘UNEA's leadership role in addressing the issue globally’,100 as
UNEP, in its role, is ‘well placed in addressing this issue in partner-
ship with others, at the interplay of land‐based activities, freshwater,
coastal zones and the ocean’.101
The resolution acknowledges the previous UNEA resolutions on
the issue, the contribution to the achievement of the Sustainable
Development Goal 14 on the reduction of marine pollution by 2025,
and mentions other international initiatives that illustrate the rising
awareness of countries on marine pollution, such as the commit-
ments taken at the ‘Our Ocean’ conferences and the G20 Action
Plan on Marine Litter that was adopted that same year.102
Despite the absence of the word ‘plastic’ in the title, the role of
the material emerges through the resolution: the preamble expresses
concern over the rapid growth of marine plastic litter, as well as pro-
jected negative impacts on the environment, economy and society,
including the effects of micro‐ and nanoplastics on marine environ-
ment and human health.103 Furthermore, while emphasizing that pre-
ventive actions through waste minimization ‘should be given the
highest priority’,104 the resolution mentions that plastic production
and consumption are growing, and urges the reduction of unneces-
105
sary uses of plastic, along with the promotion of alternatives.
Action plans that prevent marine litter and microplastics, as well as
redesign, reuse and recycling are suggested, taking into account all
the recommendations already made in the previous resolutions.106
Civil society and plastic producers are acknowledged as having
key roles. The former in the prevention and the reduction of marine
litter, and in promoting measures that include raising awareness and
107
sharing information; the latter, with importers, retailers, consumer
goods industries and other key private actors in the value chain, in
reducing marine litter and microplastics, especially through extended
producer responsibility or container deposit schemes.108 Further-
more, UNEP is also recognized as having a key role in the implemen-
tation of the previous resolutions and in the support to member
States; including the development of regional and national action
plans to combat marine litter and microplastics, promoting access to
data on the sources of marine pollution, coordination with other
United Nations agencies, as well as the consolidation of the Global
109
Partnership on Marine Litter (GPML).
UNEA ‘Resolution 3/7, Marine Litter and Microplastics’ UN Doc UNEP/EA.3/Res.7 (6
99
December 2017).
100
Norway, ‘Outline for a Draft Resolution from UNEA‐3 on Marine Litter and Microplastics
to be considered by UNEA‐3’ (5 October 2017) <http://wedocs.unep.org/handle/20.500.
11822/21536>.
101
ibid.
102
UNEA Resolution 3/7 (n 99) preamble paras 1, 5.
103
ibid preamble para 7.
104
ibid preamble para 9.
105
ibid preamble para 11.
106
ibid para 4(c).
107
ibid para 5.
108
ibid para 6.
109
ibid para 7.
AND KLEINE
The resolution additionally invites other international and region-
al organizations and conventions to strengthen and coordinate their
actions in preventing and reducing marine litter and microplastics.110
Although this illustrates the strategic role UNEP can play in strength-
ening the coordination among the fragmented international regula-
tion of the issue, it also highlights how UNEP is limited by the
mandates of other instruments, in the absence of an umbrella co-
ordinating mechanism.
While the resolution notes the assessment report on the effect-
iveness of governance strategies and approaches mandated at
UNEA‐2,111 it does not explicitly follow up on one of its three pro-
posed options. In fact, the UNEA‐3 resolution only mandates the
creation of an Ad Hoc Open‐ended Expert Group (Expert Group) ‘to
further examine the barriers to and options for combating marine
plastic litter and microplastics from all sources, especially land‐based
sources’.112
As previously mentioned, despite the absence of the word ‘plas-
tic’ from the title of the UNEA‐3 resolution, the term emerges again
as a key focus of the proposed work for the Expert Group, which
refers back to the wording of the previous UNEA‐2 resolution: ‘mar-
ine plastic litter and microplastics’.113
The work programme of the Expert Group on marine plastic litter
and microplastics includes:
(i) [t]o explore all barriers to combating marine litter and
microplastics, including challenges related to resources in
developing countries; (ii) [t]o identify the range of
national, regional and international response options,
including actions and innovative approaches, and volun-
tary and legally binding governance strategies and
approaches; (iii) [t]o identify environmental, social and
economic costs and benefits of different response
options; and, (iv) [t]o examine the feasibility and effect-
iveness of different response options.114
Lastly, the work of the Expert Group includes the task of the
identification of options to continue the work at the next UNEA
(UNEA‐4), in March 2019.115
3.7 | Progress after UNEA‐3: The work of the Ad
Hoc Open‐ended Expert Group on marine plastic
litter and microplastics
The Expert Group, pursuant to the UNEA‐3 resolution on marine lit-
ter and microplastics, was established to convene for a maximum of
110
ibid para 8.
111
ibid preamble para 4.
112
ibid para 10.
113
ibid (emphasis added).
114
ibid para 10.
115
ibid.
CARLINI AND KLEINE
two meetings before UNEA‐4,116 following the work programme
mandate by UNEA‐3. As for its membership, the Expert Group
reflects the roles of different actors recognized in the UNEA‐3 reso-
lution: not only member State experts, but also international and
regional conventions and organizations, as well as other stakehold-
ers, could take part in the meeting.117
For its first meeting, in May 2018, experts were invited to
express their views on: ‘[b]arriers to combatting marine litter and
microplastics’; ‘[n]ational, regional and international response
options’; ‘[e]nvironmental, social and economic costs and benefits’;
and the ‘[f]easibility and effectiveness of the different response
options’.118 UNEP also presented its notes, in the form of four dis-
cussion papers. These documents, which set the basis for the discus-
sion, are briefly described here.
The first discussion paper presented by the UNEP Secretariat
indicates the lack of coordination between existing institutions
addressing marine litter and microplastics as an overarching bar-
119
rier. Reinforcing the findings of the assessment report prepared
for UNEA‐3, it states that there is ‘no global institution to manage
the issue upstream from the extraction of raw materials, design and
use phases of plastic polymers and additives to final treatment and
disposal’.120 Among the legal barriers to combat marine litter and
microplastics at the international level, UNEP identifies the absence
of an international legally binding agreement whose primary mandate
is the reduction of marine plastic and microplastics, the absence of
regulations that reduce the production of certain plastics (such as
‘unnecessary, disposable, and difficult to recycle’ plastics121) and the
inadequacy of incentives for industry participation in the solu-
122
tions. Furthermore, it is highlighted that binding standards to miti-
gate plastic pollution are lacking at the international level. Likewise,
a lack of instruments that address the microplastics originating from
those products that are already known for being a significant source
of microplastics, such as textiles or tyres, is identified in the
paper.123
In its second discussion paper on the possible response options
to marine litter and microplastics,124 UNEP describes potential legal
responses for national, regional and international levels, building on
the assessment report prepared for UNEA‐3.125 At an international
116
ibid para 10(e).
117
ibid para 10(c).
118
UNEP ‘Provisional Agenda’ UN Doc UNEP/AHEG/2018/1/1 (11 April 2018).
119
UNEP ‘Discussion Paper on Barriers to Combating Marine Litter and Microplastics,
Including Challenges Related to Resources in Developing Countries’ UN Doc UNEP/AHEG/
2018/1/2 (23 April 2018) para 8 (‘Discussion Paper on Barriers’).
120
ibid.
121
ibid para 13.
122
ibid.
123
ibid.
124
UNEP ‘Discussion Paper on National, Regional, and International Response Options,
Including Action and Innovative Approaches, and Voluntary and Legally Binding Governance
Strategies and Approaches’ UN Doc UNEP/AHEG/2018/1/3 (23 April 2018) (‘Discussion
Paper on Response Options’).
125
UNEP ‘Assessment Report’ (n 22).
| 241
level, both voluntary and legally binding response options are pre-
sented. On the one hand, binding options include the possibility to
strengthen the existing instruments in the field of marine plastic
(‘option 2’) and/or developing a new globally binding architecture
(‘option 3’); on the other hand, the potential voluntary solutions
include partnerships, voluntary industry standards and a coordination
mechanism.126
In further analysing the three options, the third UNEP discussion
paper illustrates some of their costs and benefits127 in combating
marine litter and microplastics, while the fourth paper addresses
their feasibility and effectiveness.128
Following a division into social, economic and environmental cat-
egories, the Expert Group is left with the task of considering further
elements, and the recommendation that ‘coordinated action is
encouraged in order to maximize the use of available resources and
to avoid duplicated efforts’129 and that the chosen measures should
encompass all levels: national, regional and international.130
The fourth UNEP paper, on the feasibility and effectiveness of
the proposed options, considers both ‘option 2’ and ‘option 3’ of
the assessment report ‘technically and politically feasible’.131 ‘Option
2’ (that is, strengthening the existing frameworks, adding a coordin-
ating component for the industry) is considered politically feasible,
particularly because of its voluntary nature; however, the strength of
its practicability may also be a detriment to its effectiveness, espe-
cially if an insufficient number of actors take part in the initiative.132
‘Option 3’ (that is, creating a new international legally binding archi-
tecture) could be, in comparison, less politically feasible because it
requires States’ political will to ratify a new instrument. However,
this option would be the most effective in addressing marine litter
and microplastics at the international level in a coordinated manner,
especially if it includes a compliance mechanism.133
The abovementioned options may be considered by the Expert
Group as not necessarily being in competition with each other, but
as a part of a two‐step process. The work of the Expert Group
towards the next UNEA has the potential of not only contributing
recommendations to UNEA‐4, but also influencing the development
of the international regulatory framework. For instance, the first
UNEP paper links the issue of plastic pollution upstream to subsidies
for fossil fuel extraction, which artificially lower the overall costs of
plastic production.134 This contradiction was highlighted several
times during the first Expert Group meeting in May 2018, implying
‘Discussion Paper on Response Options’ (n 124) V.1.1–2.
126
127
UNEP ‘Discussion Paper on Environmental, Social and Economic Costs and Benefits of
Different Response Options’ UN Doc UNEP/AHEG/2018/1/4 (23 April 2018) (‘Discussion
Paper on Costs’).
UNEP ‘Discussion Paper on Feasibility and Effectiveness of Different Response Options’
128
UN Doc UNEP/AHEG/2018/1/5 (23 April 2018) (‘Discussion Paper on Feasibility’).
‘Discussion Paper on Costs’ (n 127) para 29.
129
130
ibid.
‘Discussion Paper on Feasibility’ (n 128) paras 12, 14.
131
132
ibid para 12.
133
ibid para 14.
‘Discussion Paper on Barriers’ (n 119) para 14.
134
242 | CARLINI
the necessity of a more holistic approach for the envisioned frame-
work.135 However, an assessment of the UNEP papers reveals an
imbalance: the focus of the recommendations and suggestions is
clearly on improved waste management efforts and technological
solutions. The preferential options under the waste hierarchy – pre-
vention, reuse and recycling – are considerably less present in the
papers; considerations on extended producer responsibility are
almost totally absent.
Towards the end of the first meeting, the Expert Group dis-
cussed potential strategies for its work towards the second meeting.
While not considered a programme of work, ideas and suggestions
from the discussion were compiled, including a recommendation to
UNEP to further develop, consolidate and merge the four discussion
papers.136 Further work proposals addressed the governance of mar-
ine plastic pollution, such as coordination and cooperation mechan-
isms; enhancing existing initiatives like the GPML with a focus on
coordination, monitoring and reporting; and the use of successful
models of regulations in other fields of environmental protection,
namely the Vienna Convention for the Protection of the Ozone
Layer and the Montreal Protocol on Substances that Deplete the
137
Ozone Layer.
4 | REFRAMING THE ISSUE: FROM
‘MARINE LITTER’ TO ‘PLASTIC
POLLUTION’?
In the fourth session of the UNEA (UNEA‐4) scheduled to take place
in 2019, member States are expected ‘to determine the future direc-
tion, timing and outcome’138 of the work undertaken by the Expert
Group on marine plastic litter and microplastics. While this presents
an opportunity for the global community to improve the current
international framework, it also opens questions concerning the
scope of a potential new global framework that might be tasked to
address the negative impacts of the plastic crisis.
Throughout the resolutions on marine litter adopted at the three
previous sessions of UNEA, plastic – whether described as marine
plastic debris, plastic litter or plastic that includes microplastics – has
emerged as an increasing cause of marine pollution that needs to be
urgently addressed. This was further highlighted during the first
Expert Group meeting.139 Moreover, the resolutions have already
identified the need to focus on land‐based sources, which stands in
line with the language of Sustainable Development Goal 14 and its
135
UNEP ‘Report of the First Meeting of the Ad Hoc Open‐ended Expert Group on Marine
Litter and Microplastics’ UN Doc UNEP/AHEG/2018/1/6 (19 June 2018) (‘Report of the
First Meeting’).
136
ibid 25; T Kantai and DW Nyingi, ‘Summary of the First Meeting of the Ad Hoc Open‐
ended Expert Group on Marine Litter and Microplastics: 29–31 May 2018’ (2018) 186
Earth Negotiations Bulletin 7–8.
137
‘Report of the First Meeting’ (n 135) 26; see also K Raubenheimer and A McIlgorm, ‘Is
the Montreal Protocol a Model that can Help Solve the Global Marine Plastic Debris Prob-
lem?’ (2017) 81 Marine Policy 322.
138
UNEA Resolution 3/7 (n 99) para 10(g).
139
Kantai and Nyingi (n 136).
AND KLEINE
target 14.1 on the prevention and significant reduction of marine
pollution especially ‘from land‐based activities’ by 2025.140
4.1 | Limits of a ‘marine issue’ framing
While global approaches to combat marine pollution mention the
strategic importance of the reduction and prevention of discharges,
the upstream sources of (marine) pollution remain overlooked. This
might be a direct consequence of the framing of increasing presence
of plastic and microplastics in the environment as a ‘marine’ issue. If
the ‘marine’ focus has been instrumental in raising global awareness
on the topic, it also limits the scope and effectiveness of the pos-
sible international response options, and it is inconsistent with the
recognition that there is a need for ‘an urgent global response [that]
tak[es] into account a product life‐cycle approach’.141
The current policy focus on marine plastic litter risks restricting
the scope of any new regulatory action so that only the marine side
of plastic litter would be addressed, disregarding the fate and
impacts of all the waste that might not ultimately arrive in the
marine environment.
4.2 | Limits of a ‘waste issue’ framing
From UNEA resolutions to global awareness‐raising campaigns,142
global approaches to the ‘plastics crisis’ have historically defined
plastic as ‘waste’, or a discharge product at the end if its life cycle
(‘plastic litter’). This framing has implied that the focus of the solu-
tion was also limited to waste approaches: ‘waste’ management and
the minimization of plastic ‘waste’ were identified as the highest pri-
ority solutions at UNEA‐3.143
As a consequence, the increase of recycling rates could appear
as a possible way forward,144 and might lead to the option of creat-
ing mandates for recycling; however, recycling alone would not be
sufficient to solve the plastic crisis: as of 2015, only around 9 per-
cent of all plastic ever produced has been recycled,145 demonstrating
the challenges of relying primarily on recycling. In addition, the evo-
lution of the ways in which plastics are used, such as sachet packag-
ing, also contributes to the rising quantity of plastics that cannot be
recycled. Further, the production of new plastic is expected to
significantly increase in the coming decades.146
Moreover, any regulation on plastic recycling should also take
into account the challenges posed by the hazardous chemicals com-
ponents of plastics, which have led to proposals to classify plastic
140
UNGA (n 24) 23.
141
UNEA Resolution 2/11 (n 78) para 1.
142
See, for instance, the UN #CleanSeas campaign: ‘UN Declares War on Ocean Plastic’ (n 4).
143
UNEA Resolution 3/7 (n 99) preamble para 9.
144
ibid para 4(c); ‘Discussion Paper on Feasibility’ (n 128) 4.
145
Geyer et al (n 2) 3.
146
American Chemistry Council (n 18); UNEA Resolution 3/7 (n 99) preamble para 7; CIEL
(n 19).
CARLINI AND KLEINE
itself as ‘hazardous’.147 Similarly, incineration and other technical
solutions are often presented as possible answers to plastic
waste;148 however, these technologies present a large number of
149
environmental and human health challenges themselves, and this
approach would be inconsistent with the waste hierarchy, according
to which the first and utmost policy approach is the prevention of
the generation of waste.150
Furthermore, the negative impacts of plastic on the environment
are not only limited to plastic as a ‘waste’. Plastic carries significant
negative environmental impacts at each stage of its life cycle: the
extraction of fossil fuel feedstocks, the production of plastic poly-
mers and plastic additives, the transportation, distribution, use and
final treatment.151
4.3 | Reframing the issue
The ongoing work on marine litter and microplastics, begun at the
first UNEA, presents a key opportunity to address the ‘plastic crisis’.
Any new international framework, whether a voluntary umbrella
mechanism or a new binding treaty, would need to overcome the
current fragmented governance structure. As identified in the assess-
ment report, the current approach to address marine plastic litter
and microplastics suffers limitations both in scope and mandate, and
the way forward will need a holistic approach that considers ‘factor-
152
ing in production forecasts’.
In light of the limitations of current international instruments in
addressing plastics as a marine litter issue, and the clear desire to
move towards a comprehensive approach, it follows that the interna-
tional community should consider a more effective framing of the
issue that clearly encompasses the full life cycle of plastic. The cur-
rent production trends, which show an increase of the global pro-
duction of plastic, as well as the recognized negative impacts
throughout the life cycle, are factual indications of the necessity to
regulate not only marine plastic litter, but also upstream phases,
including plastic production and raw material extraction. Addressing
plastics not only downstream, but also upstream, would be conse-
quently captured by a ‘plastic pollution’ framing.
147
CM Rochman et al, ‘Policy: Classify Plastic Waste as Hazardous’ (2013) 494 Nature 169.
148
‘Discussion Paper on Response Options’ (n 124) para 22.
149
National Research Council (US) (ed), Waste Incineration & Public Health (National Acad-
emy Press 2000); J Thompson and H Anthony, ‘The Health Effects of Waste Incinerators’
(2005) 15 Journal of Nutritional & Environmental Medicine 115; Á Nagy and R Kuti, ‘The
Environmental Impact of Plastic Waste Incineration’ (2016) 15 Academic and Applied
Research in Military and Public Management Science 231; A Turner, ‘Black Plastics: Linear
and Circular Economies, Hazardous Additives and Marine Pollution’ (2018) 117 Environ-
ment International 308; Gallo et al (n 12).
150
Directive 2008/98/EC (n 85) art 4; Hyman et al (n 85).
151
UNEP/SETAC Life Cycle Initiative, ‘Life Cycle Approaches: The Road from Analysis to
Practice’ (2005) 14; RC Thompson et al, ‘Plastics, the Environment and Human Health: Cur-
rent Consensus and Future Trends’ (2009) 364 Philosophical Transactions of the Royal
Society B: Biological Sciences 2153.
152
UNEP ‘Combating Marine Plastic Litter and Microplastics: An Assessment of the
Effectiveness of Relevant International, Regional and Subregional Governance Strategies
and Approaches – Summary for Policy Makers’ UN Doc UNEP/AHEG/2018/1/INF/3 (20
April 2018) 5.
| 243
Under this comprehensive framing, the scope of the prevention
of plastic ‘pollution’ would need to address the issue of the increas-
ing production and consumption of plastic, and the regulatory
actions that would eventually result in its global reduction. This for-
mulation would open the door to a more coherent approach, not
only with the theme of the 2019 UNEA‐4, ‘Innovative Solutions for
Environmental Challenges and Sustainable Consumption and Produc-
tion’,153 but also with the 2030 Agenda for Sustainable Develop-
ment, and in particular Sustainable Development Goal 12 on
sustainable consumption and production.
5 | CONCLUSIONS
While the awareness of plastic pollution continues to grow, the
existing international agreements lack a coordination mechanism and
have resulted in a fragmented governance structure. There is no
international instrument with the mandate of preventing plastic pol-
lution addressing plastic throughout its life cycle.
At each of its three sessions, the UNEA of the UNEP adopted
resolutions on marine plastic pollution and advanced the discussion
on the adoption of new measures. At its second session in 2016,
UNEA mandated an assessment of the effectiveness of relevant gov-
ernance strategies and approaches to combat marine plastic litter
and microplastics. The assessment identifies major gaps and chal-
lenges, and proposes options for a way forward. Furthermore, the
third session of UNEA, in December 2017, established the creation
of an Ad Hoc Open‐ended Expert Group mandated to, inter alia,
identify response strategies to combat marine plastic litter and
microplastics, including through voluntary and legally binding govern-
ance options, and the opportunity to determine the work of the next
UNEA session.
Driven by UNEA, the global community has the possibility to
combat plastic pollution by creating a new global framework.
While the international instruments have so far followed a marine
protection approach, and framed plastic as a ‘litter’ or ‘waste’
material, it is clear that the impacts of plastics go beyond the
marine environment and start upstream with the extraction of fos-
sil fuels.
The current ‘marine plastic litter’ frame limits the potential scope
and mandate of any new instrument to merely treating the symp-
toms of the plastic crisis. Such a framing omits the possibility of
effectively addressing the causes of pollution, and the implementa-
tion of a prevention strategy that addresses the increasing produc-
tion trends and the impacts of plastic across its full life cycle.
Expanding the scope of the subject from an exclusive marine litter-
ing problem to a broader plastic pollution issue presents an
opportunity to develop a comprehensive approach and, therefore, a
more effective global framework that encompasses not only plastic
UNEP ‘Summary of the 1st Joint Preparatory Retreat of the Bureaux of the UN Environ-
153
ment Assembly and of the Committee of Permanent Representatives’ (27 March 2018)
<http://wedocs.unep.org/bitstream/handle/20.500.11822/25178/Summary%20First%
20Joint%20Bureaux%20Retreat%202018.pdf?sequence=33&isAllowed=y>.
244 | CARLINI AND KLEINE

litter, but the whole plastic life cycle, and could eventually catalyse a
Institute of International and Development Studies in Geneva,
reduction of plastic production and consumption and their adverse
Switzerland. Since 2015, he is Assistant to Dr Valencia‐
impacts.
Ospina in the International Law Commission. Previously, he
studied law in Germany (Bucerius Law School) and Canada
ORCID (Dalhousie University), obtained an LL.M. in International Law
from the Graduate Institute and worked as Teaching
Giulia Carlini http://orcid.org/0000-0001-9061-2462
Assistant on Global Governance at the same institute. His
Konstantin Kleine http://orcid.org/0000-0002-5409-0174
research interests include non‐State normmaking, interna-
tional legal theory, human rights and humanitarian law, and
failing States.
Giulia Carlini is a Staff Attorney at the Center for Interna-
tional Environmental Law (CIEL) in the Environmental Health The authors would like to thank Daimeon Dean Shanks, Laura
programme, based in Geneva, Switzerland. Her work focuses Patricia Guaqueta Pardo, David Azoulay and Marie Mekosh
on endocrine‐disrupting chemicals (EDCs), international for helpful critical comments and editing.
chemicals governance, and global law and policy on plastics.
She studied law in Italy (University of Trento) and Belgium
(University of Liège). She graduated in European and
How to cite this article: Carlini G, Kleine K. Advancing the
Transnational Law from the University of Trento and holds
international regulation of plastic pollution beyond the United
an LL.M. in International Law from the Graduate Institute
Nations Environment Assembly resolution on marine litter
of International and Development Studies in Geneva,
and microplastics. RECIEL. 2018;27:234–244.
Switzerland.
https://doi.org/10.1111/reel.12258
Konstantin Kleine is a PhD candidate in International Law
with a Minor in Anthropology and Sociology at the Graduate
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