Marine Pollution, Shipping Waste and International Law

Gabriela Argüello

• Publisher: Routledge
• Year: 2019
• ISBN:
  9780429602085
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

Waste management poses increasing challenges to both the protection of the environment and to human health. To face these challenges, this book claims that environmental law needs to shift attention from media-specific pollution regimes to integrative life-cycle approaches of waste management i.e., from the prevention of waste generation to the actual handling of wastes. Furthermore, the cooperation of States and the establishment of coordinated activities is essential because states can no longer have separate standards for wastes posing transboundary risks and for 'purely domestic' wastes.

Drawing upon both International and EU law, the book provides a detailed analysis of the regimes set up to deal with the transboundary movement of wastes and ship-source pollution, so as to elucidate the obligations and legal principles governing such regimes. It concludes that treaty obligations concerning transboundary movements of wastes are inapplicable to ship wastes while on board ships and on land. However, despite the limitations of the transboundary movement of wastes regime, the principle of Environmentally Sound Management (ESM) embodied in this regime has gradually transformed into a legal principle. ESM works to address the legal gaps in the regulation of wastes, and consequently, it provides the desired coherence to the legal system since it acts as a bridge between several regulatory and sectoral levels. Furthermore, ESM offers a new light with which to understand and interpret existing obligations, and it provides a renewed impetus to regimes that directly and indirectly govern wastes. This impetus translates into greater coordination and the establishment of cross-sectional policies.

By offering alternative ways to solve problems linked to the management of ship wastes in the sea-land interface, this book will appeal to anyone with an interest in International Environmental Law.

Part I
Preliminaries

1 Introduction

Background

Human activities are increasingly putting pressure on the functioning and resilience of the Earth system, i.e., the biophysical and chemical processes happening on land, in the oceans, and in the atmosphere.¹ To grasp the anthropogenic influences on this system, scientists have identified nine planetary boundaries including climate and land-system changes, and biogeochemical flows, among others.² Within such planetary boundaries, the most pressing challenge is that of devising “safe operating spaces for humanity”.³ One key feature in establishing these planetary boundaries is the safeguarding of the capacity of the environment to “absorb and dissipate human waste”.⁴ Indeed, waste management is fundamental to maintaining human activities within the planetary boundaries and preserving the environment’s capacity to sustain life. For instance, waste management has implications for the preservation of biodiversity and the maintenance of ecosystem services, e.g., by avoiding the discharge of hazardous waste into the ocean or emissions into the atmosphere.⁵

While essential for ensuring the Earth’s resilience, waste management remains one of the greatest challenges for not only our generation but future ones too. Waste generation is closely interrelated “to population and income growth”.⁶ According to the OECD’s estimates, “12 billion metric tons (Gt) of wastes including over 0.4 Gt of hazardous waste” are generated each year.⁷ Therefore, as societies experience further economic development and industrialization, waste management poses both challenges for the protection of the environment and human health, and opportunities for expanding markets of recyclable materials and energy recovery.⁸

1 Johan Rockström et al., “Planetary Boundaries: Exploring the Safe Operating Space for Humanity,” Ecology and Society 14, no. 2 (2009). See also Will Steffen et al., “Planetary Boundaries: Guiding Human Development on a Changing Planet,” Science 347, no. 6223 (2015).

2 Ibid.

3 Rockström et al., “Planetary Boundaries: Exploring the Safe Operating Space for Humanity.”

4 See Johan Rockström and Jeffrey D. Sachs, “Sustainable Development and Planetary Boundaries,” High Level Panel on the Post-2015 Development Agenda (2013), 4.

5 Ibid.

6 United Nations Environment Programme (UNEP) and GRID-Arendal, “Towards a Green Economy: Pathways to Sustainable Development and Poverty Eradication,” (2011), 299. See also that according to the OECD, “Generally, waste in high-income countries tends to contain more packing materials and manufactured products/materials, and less organic waste. Conversely organic waste can make up 50–80% of municipal waste in lower income countries” Organisation for Economic Co-Operation and Development (OECD), “Material Resources, Productivity and the Environment,” OECD Green Growth Studies (Paris, 2015), 90.

7 The quantities of generated wastes must be carefully considered, since the definition of waste varies between States and information regarding some waste streams is not always available. Organisation for Economic Co-Operation and Development (OECD), “Material Resources, Productivity and the Environment,” 90. A detailed explanation of the trends of waste generation is found in “Resource Productivity in the G8 and the OECD,” A Report in the Framework of the Kobe 3R Action Plan (2011), 15–16.

8 Organisation for Economic Co-Operation and Development (OECD), “Material Resources, Productivity and the Environment,” 41, 93. Secretariat of the Basel Convention, Zoï Environment Network, and GRID-Arendal, “Vital Waste Graphics 3,” (France, 2012), 12–13. Katharina Kummer, “Turning Wastes into Valuable Resources: Promoting Compliance with Obligations?,” Environmental Policy and Law 41, nos. 4–5 (2011). United Nations Environment Programme (UNEP) and GRID-Arendal, “Towards a Green Economy: Pathways to Sustainable Development and Poverty Eradication,” 298.

A life-cycle approach to waste management

Traditionally, waste management dealt with downstream disposal operations. A life-cycle approach, by contrast, offers a new perspective that involves every phase, i.e., from the prevention and reduction of waste generation to the actual handling of wastes. Waste handling includes the collection, transport, monitoring, and treatment of wastes including the aftercare of waste facilities.

From a legal perspective, the regulation of waste is intrinsically intertwined with policy issues. At both international and regional levels, a life-cycle approach is promoted as a fundamental part of the transition from a “linear economy,” to a “circular”⁹ or “green economy”.¹⁰ A circular economy aims to achieve sustainable development by uniting economic development and environmental protection.¹¹ Waste management is vital to such a transition. In a linear economy, production is dependent on the exploitation of natural resources. Production is then followed by consumption and finally by waste disposal.¹² In a circular or green economy, the efficient use of resources becomes paramount. Consequently, the preservation and protection of resources entail a reexamination of the role of wastes in the economy. Waste becomes another stage in the production process; those substances or materials reenter the production process by several means, including reuse, recycling, or recovery.¹³ The efficient use of resources also involves the prevention of waste generation.

9 Note that circular economy has its origin in “economy and ecology.” Alan Murray, Keith Skene, and Kathryn Haynes, “The Circular Economy: An Interdisciplinary Exploration of the Concept and Application in a Global Context,” Journal of Business Ethics 140, no. 3 (2017): 369.

10 At the international level, the United Nations Environment Programme (UNEP) has been a primary actor in the transition toward a “green economy.” United Nations Environment Programme (UNEP) and GRID-Arendal, “Towards a Green Economy: Pathways to Sustainable Development and Poverty Eradication,” 295. At the EU level, See “Com(2015) 614 Final: Closing the Loop – An EU Action for the Circular Economy,” (Brussels, 2015), 8. See also “Com(2017) 33 Final, on the Implementation of the Circular Economy Action Plan,” in Report from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions (26.01.2017). Organisation for Economic Co-Operation and Development (OECD), “Material Resources, Productivity and the Environment,” 41.

11 Murray, Skene, and Haynes, “The Circular Economy: An Interdisciplinary Exploration of the Concept and Application in a Global Context,” 369. See also Chris Backes, Law for a Circular Economy (The Hague: Eleven International Publishing, 2017), 13. “The circular economy refers to an economic concept which is rooted in the principle of sustainable development and whose objective is to produce goods and services while limiting the consumption and waste of raw materials, water and energy sources.” This is a citation of the French Ministry of Environment, Energy and the Sea found in Eléonore Maitre-Ekern, “The Choice of Regulatory Instruments for a Circular Economy,” in Environmental Law and Economics, ed. Mathis Klaus and Bruce R. Huber (Switzerland: Springer 2017), 311.

12 Richard Hughes, “The EU Circular Economy Package – Life Cycle Thinking to Life Cycle Law?” (paper presented at the the 24th CIRP Conference on Life Cycle Engineering, 2017), 10–11.

13 Note that a “circular economy is one that is restorative and regenerative by design, and which aims to keep products, components and materials at their highest utility and value at all times, distinguishing between technical and biological cycles. Therefore, the circular economy concept aims at optimising the value of the resources used and to minimise the amount of resources used.” Backes, Law for a Circular Economy, 13. See also Maitre-Ekern, “The Choice of Regulatory Instruments for a Circular Economy.”

Legal challenges for waste regulation from a life-cycle approach

From a legal perspective, applying a life-cycle approach to waste management raises two main challenges. First, international law regulates wastes incidentally, i.e., within media-specific pollution regimes, e.g., sea, air, land-based pollution; or in relation to hazardous substances, e.g., regulation of persistent organic pollutants. In cases where wastes are directly regulated, this regulation is concerned with a particular activity, i.e., transboundary movements or dumping. The incidental regulation of wastes involves a risk of transfer of pollution from one environmental medium to another, resulting in fragmentation. Such fragmentation produces a lack of coordination between different regimes and the proliferation of conflicting and inconsistent legal obligations.

The second challenge is that waste management has been traditionally considered as a national affair except in cases dealing with pollution transfer and transboundary movements of wastes. Within this traditional legal perspective, States are virtually free to generate and to dispose of wastes as they see fit, so long as such wastes do not cause harm beyond their national jurisdiction.¹⁴

14 See, for example, Rosemary Rayfuse, “Principles of International Environmental Law Applicable to Waste Management,” in Waste Management and the Green Economy: Law and Policy, ed. Katharina Kummer, Andreas R. Ziegler, and Jorun Baumgartner (Cheltenham: Edward Elgar Publishing, 2016).

Considering the challenges described above, the main legal problem concerning waste is the absence of a regulatory system that would enable the m...

Table of contents

• Cover
• Half Title
• Series Page
• Title Page
• Copyright Page
• Table of Contents
• List of figures
• List of tables
• List of abbreviations
• PART I Preliminaries
• PART II Regulation of transboundary movements of wastes and ship wastes
• PART III The ESM of wastes
• PART IV Conclusions
• Appendix I: management of cargo residues (MARPOL, Annex II) in the Baltic Sea area
• Appendix II: survey results concerning the collection of cargo residues (MARPOL, Annex II) in the Baltic Sea area
• References
• Bibliography
• Index