Fabiano de Andrade Correa

Plastic pollution is considered one of the most important environmental problems that we currently face. The month of June 2018 has been a landmark in promoting awareness of this problem, with both the World Environment Day (WED, celebrated each 5 of June) and the World Oceans Day (WOD, celebrated each 8 June) having their themes focused on fighting plastic pollution. The United Nations supports these “world days” as means to promote global attention and action in a particular area, and the fact that this year two of these events targeted the same challenge is a powerful statement. The data collected for these eventsreveal shocking statistics:

• 17 million barrels of oil used on plastic production each year;
• Up to 5 trillion plastic bags used each year; and 1 million plastic bottles bought every minute
• 50% of all plastics produced are single use (!);
• 13 million tonnes of plastic leak into the ocean each year – 100,000 marine animals killed by plastics each year; it is estimated that by 2050, there could be more plastics in the oceans than fish!
• Plastic makes up 10% of all human-generated waste: but it takes about 100 years for plastic to degrade in the environment;
• Nature’s revenge: 90% of bottled water, and 83% of tap water, found to contain plastic particles (!!!) – we may throw it away, but it comes back to us!

In addition to these numbers, images collected from around the world speak for themselves in showing how big this challenge is becoming.In fact, more than an environmental crisis, the plastic problem is an example of the unsustainable development path humanity is taking. The concept of sustainable development, mainstreamed through the UN Earth Summit in 1992, prescribes a balance between economic development, environmental protection and social justice. However, the excessive reliance on plastics, and the way these products are being managed, denotes a prevalence of the economic interests of plastics, to the detriment of their social and environmental impacts.

As with many issues related to sustainable development, law has an important role to play as one of the tools societies have to regulate behaviour and promote common goals. However, in this case from a legal perspective there is no international agreement addressing plastic production and consumption. Indirectly, some international instruments have an important role to play:

• The United Nations Conventions on Climate Change (UNFCCC, 1992) and the 2015 Paris Agreement prescribe a duty to reduce emissions of greenhouse gases (GHG) and prevent dangerous human-induced climate change; the millions of barrels of oil used each year to produce plastic are an important source of GHG pollution, and therefore need to be a part of the Nationally Determined Contributions (NDCs) that countries prepare and submit as pledges for global climate action;
• The Convention on Biological Diversity (CBD) promotes biodiversity protection and sustainable use, and is also translated into national plans (NBSAPs)through which countries adopt measures to prevent pollution dangerous to biodiversity, which can include, among others, reducing plastic pollution on rivers and land;
• Specifically related to the oceans, the United Nations Convention on the Law of the Sea (UNCLOS, art. 194), requires states to “prevent, reduce and control pollution of the marine environment from any source”);
• Finally, the SDGs, though not legally binding, provide an important framework for action until 2030, including specific goals on sustainable consumption and production (SDG12), and on the protection of the oceans (SDG14).

Still,many commentators discuss the need for a binding treaty on plastics, similar for instance to the Montreal Protocol on Substances that Deplete the Ozone Layer (which could impose, among other measures, a global cap on plastic production and trade bans)– something that might, however, not be politically feasible anytime soon.

At the national level, on the other hand, many initiatives are already on the way. Fighting plastic pollution can find a legal basis in different provisions related to environmental protection. Notably, making a clean environment a human right has been gaining increasing support, and many Constitutions around the world already enshrine a collective right to a healthy/clean environment. This provides a legal basis for action against activities that are harmful for the environment, including class actions initiated by public institutions (such as ‘public ministries’ or public prosecutors) as well as NGOs and civil society.

Tackling this issue from an environmental protection approach only is, nevertheless, not enough. In fact, more direct regulation on the production and use of plastics needs to be put in place, as well as mechanisms providing economic incentives for the production and consumption of more sustainable materials (like taxes and fees on the sale of plastic bags, and subsidies for the production of organic alternatives). This way, law will be taking a sustainable development approach that not only addresses environmental protection, but also the issues of making sustainability more economically viable and socially feasible. Several governments are taking action in this field: Rwanda was one of the first countriesto enact legislation banning the use of plastic bags, back in 2008. In 2015, France enacted the “Energy Transition for Green Growth Act”, mandating it to be the first country in the world to ban also plastic plates, cups andutensils, which will go into effect in 2020, allowing instead items made of compostable, biosourced materials. More than just adopting a measure for environmental reasons, this law aims to promote a “circular economy” of waste disposal, “from product design to recycling”. Later on, in 2016 the government of Costa Rica announced an ambitious policy to be first country in the world with a comprehensive national strategy to eliminate single-use plasticsby 2021; though progress is being made, the country has yet to adopt legislation enforcing this policy goal. Other countries have adopted similar measures including bans and levies on production and consumption of plastics. While these alternatives are promising, care should be taken to ensure that measures are both economically viable and socially acceptable, in order to be fully implementable.

Government measures need, however, to be complemented by action from the private sector as well as bottom up initiatives from citizens. While governments must drive this change, they can also hold manufacturers to account for the life cycle of their products; this can be done, for instance, through incentives to encourage companies to actively embrace social responsibility, being rewarded for moving to a more circular model of design and production.

But business can also proactively innovate, adopting business models that reflect responsibility for the downstream impact of their products. Several initiatives already exist to prove that this is possible, with an increasing number of innovative products designed to address issues gaining significant support. Take for instance the example of the “Final Straw’, a “kick-starter” company that is aiming to produce a portable metal straw that can be used instead of its single use plastic equivalent. As a testimony to how much support such initiatives can receive, this has been one of the companies able to raise faster economic support in the platform Kickstarter – with a record USD$ 1,800,000 to date.Moving into production stage, they aim to deliver the first bash of products in November 2018. A simple idea that can have a huge impact in preventing unsustainable use of plastics.

Finally, citizens and organized civil society also has a key role to play, being not only passive actors but drivers for the behaviour change that must happen upstream. Initiatives such as “Bye Bye Plastics”in Bali exemplify how powerful bottom up initiatives can be: born in 2013 in the south-east Asiani island known for its plastic problem, it has now grown into a well known international movement aimed at raising awanress, empowering young people elsewhere and supporting the figtht agains plastics.Notably, they led a four-year campaign to persuade the authorities to ban plastic bags, eventually leading the government to commit to phasing out plastic bags.

This article had the aim to highlight that fighting plastic pollution, more than an environmental crisis, is a matter of sustainable development – one that requires multi-layered solutions and engagement by all society. Law has an important role to play, providing the duties and mandates to foster more sustainable production and consumption of plastics. But government action enacting international and national legal instruments will not suffice. The private sector and citizens also have a role to play, becoming more aware of their impact along the life cycle of plastics, and taking action within their reach to change behaviours and support more sustainable alternatives. After all, if plastics are going to end up even in the water we drink, it is a problem that we all share – and must fight together.