More Than the Daily Catch: How Regulating the Fishing Industry Can Help Keep Plastics from the Ocean

• Citation: Vol. 50 No. 3
• Publication year: 2022
• topic: Environmental Law

MORE THAN THE DAILY CATCH: HOW REGULATING THE FISHING INDUSTRY CAN HELP KEEP PLASTICS FROM THE OCEAN

Katherine Payne^*

[Page 639]

TABLE OF CONTENTS

I.INTRODUCTION....................................................................641

II.BACKGROUND....................................................................642

A. Overview of the Great Pacific Garbage Patch........................642
B. Plastic from Land Sources.....................................................644
C. Marine Based Plastic............................................................. 646
D. Available Instruments to Restrict Pollution...........................647

i. United Nations Convention on the Law of the Sea...........647
ii. The 1972 London Dumping Convention..........................650
iii. International Convention for the Prevention of Pollution from Ships...........651
iv. The Global Programme of Action for the Protection of the Marine Environment from Land-Based Activities (GPA). 651
v. FAO Code of Conduct for Responsible Fisheries.............652
vi. Sustainable Development Goals......................................653

E. The Tragedy of the Commons...............................................657
F. Policy Approaches To Overcome the Tragedy of the Commons .............................................................................................660
G. Prescriptive Regulation.........................................................660
H. Property Rights.....................................................................661

i. Tradable Permits.............................................................662

I. Financial Penalties................................................................662

[Page 640]

i. Liability Rules................................................................663
ii. Taxation..........................................................................663

J. Payment And Subsidies.........................................................663
K. The Information Approach....................................................664

III. ANALYSIS........................................................................665

A. International Plastic Treaty...................................................665

i. International Plastic Treaty..............................................666
ii. Amending UNCLOS.......................................................667
iii. The UN Commitment to Negotiating a Plastics Treaty.....668

IV. CONCLUSION....................................................................669

[Page 641]

"It's crazy to think that earth really has no natural enemies other than people. But people problems call for people solutions."¹

"I just want to say one word to you. Just one word... Plastics."²

I. INTRODUCTION

Approximately eight million tons of plastic waste enter the oceans every year,³ accumulating into at least 79,000 metric tons of marine debris floating inside a 1.6 million square-kilometer area known colloquially as the Great Pacific Garbage Patch (GPGP).⁴ If the GPGP goes unchecked, the amount of plastic pollution in the ocean could triple within the next thirty years.⁵ The GPGP lies at least forty nautical miles away from any country's exclusive economic zone, meaning that it is within the "'High Seas,' also known as 'areas beyond national jurisdiction' where all nations are afforded the Freedom of the Seas."⁶

Because there are no defined private ownership rights or public jurisdiction over the GPGP, no single country, company, or person has an incentive to protect the ocean's resources and keep it clean.⁷ Instead, international actors deplete the ocean's resources as quickly as possible at the expense of others - creating a "Tragedy of the Commons."⁸

The excessive plastic waste in the ocean is not only concerning to marine health and biodiversity, but recent studies showed that the plastic in the ocean accumulates in the fish we eat and the water we drink.⁹ The buildup of BPAs (the basic building block of polycarbonate plastic) has significant

[Page 642]

health ramifications, such as hormonal disruption, and can poison the digestive system.¹⁰ In this Note, I will analyze existing international law regarding ocean waste. Through this analysis, I will find the holes in the existing legal hard and soft law regimes to create an International Plastic Treaty to overcome the tragedy of the commons.

II. BACKGROUND

A. Overview of the Great Pacific Garbage Patch

A yachtsman named Charles Moore discovered The Great Pacific Garbage Patch while traveling from Hawaii to California.¹¹ While crossing the North Pacific Subtropical Gyre, Moore and his crew sailed through the trash soup, detecting that millions of plastic pieces surrounded their ship.¹² The GPGP discovery confirmed what oceanographers and climatologists predicted for years - a large collection of trash circulating in the ocean.¹³ However, the visible trash Moore found was just a portion of the problem; "Oceanographers and ecologists recently discovered that about 70% of marine debris actually sinks to the bottom of the ocean."¹⁴ Like the iceberg that sunk the Titanic, there is an even bigger plastic problem lurking beneath the surface.

Many types of trash make up marine debris, but plastics account for most marine litter.¹⁵ This is due to two reasons: "First, plastic's durability, low cost, and malleability mean that it's being used in many more consumer and industrial products. Second, plastic goods do not biodegrade but instead break down into smaller pieces."¹⁶ Instead of fully decomposing, the sun, waves, and mechanical abrasion break down plastic into smaller pieces - a process called photodegradation.¹⁷

[Page 643]

Plastics take at least 400 years to fully decompose, meaning that "virtually every piece of plastic ever produced is still around."¹⁸ "Plastic can be found on every beach in the world. Microplastics are found at 5,000 metres depth, and plastic bottles have been found at depths of 3,500 meters. It is actually 'raining' plastic in the ocean. Scientists are still far from mapping all the plastic pollution in the oceans."¹⁹ However, a recent study found that microplastics, plastics less than five millimeters in length, "make up 94 percent of the estimated 1.8 trillion pieces of plastics in the patch. But that only amounts to eight percent of the total tonnage."²⁰ Fishing nets and other fishing industry gear compose the largest amount of marine debris by tonnage.²¹ The different types of marine debris in the GPGP appear below: ²²

[Page 644]

B. Plastic from Land Sources

In 2015, the world produced 381 million tons of plastic, roughly equivalent to "the mass of two-thirds of the world population."²³ Cumulatively, the world produced 7.8 billion tons of plastic, more than a "tonne of plastic for every person alive today."²⁴ Out of all plastic created from 1950-2015, 30% is still in use, 55% went straight to a landfill or was improperly discarded, 8% was incinerated, and only 6% was recycled.²⁵ In 2015, the packaging industry produced the most plastic, producing 42%, and because plastics used for packaging have a short "in-use" lifetime, packaging also produced the most plastic waste.²⁶

The 2015 statistics for the total plastic waste produced by country show that China produced the most plastic waste at 60 million tons, followed by the United States at 38 million tons, Germany at 14.5 million tons, and Brazil at 12 million tons.²⁷ However, the data should shift based on the effectiveness of the country's waste management to quantify the inadequately disposed waste.²⁸ By combining the sum of inadequately disposed waste with the share of littered plastic waste, researchers can quantify the amount of plastic that could eventually enter the ocean across the world, otherwise defined as mismanaged waste.²⁹ According to their estimates, "China contributes the highest share of mismanaged plastic waste with around [28%] of the global total, followed by [10%] in Indonesia, [6%] for both the Philippines and Vietnam," while "other leading countries include Thailand [3.2%]; Egypt [3%]; Nigeria [2.7]; and South Africa [2%]."³⁰ Around eight

[Page 645]

million tons of mismanaged waste then pollutes the ocean as depicted by the illustration below:³¹

The plastic in the ocean then undergoes the lengthy photodegradation process to transition into microplastics.³² This is dangerous to both marine wildlife and human health.³³ Fish ingest the largest quantity of harmful microplastics, and humans then consume those fish, leading to contamination of our food and water sources.³⁴ While the harm caused by microplastics is not conclusory, the chemicals found in some plastics are linked to a variety of

[Page 646]

health problems, "including reproductive harm and obesity, plus issues such as organ problems and developmental delays in children."³⁵

C. Marine Based Plastic

Fishing nets account for 46% of the ocean's seventy-nine thousand tons of trash, while other fishing industry gear accounts for the majority of the remaining 54%.³⁶ "More than 640,000 tonnes of nets, lines, pots, and traps used in commercial fishing are dumped and discarded in the sea every year."³⁷ Fishing gear that is lost or abandoned at sea is nicknamed "ghost gear."³⁸ In 2015, ghost gear consisted of approximately 10% of the ocean's plastic, but because of the prevalence of ghost gear from "illegal, unregulated, and unreported fishing" and poor fishery regulation, that amount has only increased.³⁹ Accordingly, a study found that an estimated 60% of garbage that washed up on an uninhabited island originated from industrial fisheries.⁴⁰

Abandoned fishing gear is deadly to marine animals and marine habitats.⁴¹ It also creates "ghost fishing," where a fish or animal gets stuck in an abandoned net or trap, causing unintended death of marine life.⁴² Fishermen experience direct costs from ghost fishing, such as replacing the lost gear, increasing resources to capture the...