The One Ocean Hub Submits Input on “The lifecycle of plastics and human rights” – Mandate of the Special Rapporteur on toxics and human rights
In March 2021 the One Ocean Hub made a written submission in response to “The lifecycle of plastics and human rights” call for submission to the United Nations High Commissioner for Human Rights. Professor Bhavani Narayanaswamy, Graham Hamley, and Tallash Kantai contributed to the Hub’s written submission that highlighted the direct and indirect impacts of plastics on the enjoyment of the right to health, the right to a healthy environment, and the right to adequate food.
The Hub written submission consists of four different sections, as follows:
1. Information on plastics generally
2. Impacts of ocean plastics pollution on human rights holders
3. Implications of ocean plastics pollution for duty bearers
4. Implementation of relevant policy and legal frameworks in recycling ocean plastics
Information on plastics generally
There are current estimates of 8 million tons of plastic being deposited into the oceans each year (Jambeck et al. 2015), accounting for 80% of all marine debris. This, however, may be an underestimate.
The amount of plastic waste generated by individuals in many Low- and Middle-Income Countries (LMICs) is often relatively low as is the plastic waste generated by these countries. However, many LMICs are unable to adequately manage their waste (Our world in data: accessed March 2021). In Ghana, plastic pollution is a major issue in the Korle lagoon, which is known for its high levels of pollution (Little and Akese 2019). Agbogbloshie, a nickname given to a commercial district, on the banks of the Korle Lagoon has become the destination of electronic (e.g. televisions and computers) and automobile scrap. Much of the waste material is burnt to gain access to precious metals, or ends up in the lagoon itself. The lagoon no longer acts as a flood prevention, so during the rainy season it contributes to pollution into the Gulf of Guinea (Karikari et al. 2009).
A number of pathogens have been discovered to preferentially colonise plastic in the marine environment e.g. Vibrio cholerae the cholera pathogen which negatively impacts on human health, as well as a fish-related pathogen (Viršek et al. 2017) and harmful algal species which have been found hitchhiking on plastic debris (e.g. Artham et al. 2009). Marine plastics can thus act as vectors for pathogens, which may have harmful consequences on aquaculture and public health.
Plastics are not just found in coastal regions, but also the deep sea, including seamounts in the South West Indian and South Atlantic Ocean (Woodall et al 2015). Fishing gear is a particular issue with abandoned, lost and discarded nets continuing to pose enormous ecological (i.e. continuing to catch valuable fish; endangered fauna e.g. sharks, marine turtles) and socioeconomic problems (Gilman 2015). Plastics have also been found to be ingested by many fauna, including those in the deep sea. Fauna have ingested different types of plastic including acrylic, polyester, polyamide etc (Courtene-Jones et al. 2017; 2019; Jamieson et al. 2019). This unfortunately is not a new phenomenon with fauna collected in the mid-1970s already clearly having plastics within their stomachs (Courtene-Jones et al. 2019).
Impacts on human rights holders
Marine plastics constrain the ability of individuals to enjoy the highest attainable standard of health. Direct impacts of marine plastics on human health include direct human exposure to toxins through skin contact, inhalation, and direct ingestion, which could occur at various stages of the plastics lifecycle. Indirect impacts capture a wider range of interactions whereby various stages of the plastics lifecycle induce a change in something else (e.g. atmosphere, non-human species, etc.) that in turn yields knock-on implications for ecosystems and their services, human health and food safety.
Human health is dependent on marine biodiversity in a variety of ways, including for essential ecosystem services (such as atmospheric oxygen production) (Sekerci and Petrovskii 2015: 2326); as an essential source of food and nutrition (including a rich source of omega 3 fatty acids, selenium, iron and vitamin D) (Kite-Powell et.al. 2008: 9; Moore et.al. 2013: 49; Llore et.al. 2016:29); and a source of biomedical discovery (Lloret 2010: 1642). Loss and degradation of marine biodiversity due to marine plastic pollution threatens the enjoyment of all of these essential drivers of human health.
Viewed through a human rights lens, the harm to marine biodiversity from plastic pollution threatens the enjoyment of both the right to health and the right to adequate food. Loss and degradation of marine biodiversity — catalysed by marine plastic pollution — threatens enjoyment of these rights in a variety of ways. First, a reduction in marine biomass means that there are fewer resources available to meet human needs as a food source. Second, the ingestion of plastics by marine species presents a food safety risk for humans when contaminated seafood enters the human food chain (Smith et.al. 2018: 380 – 382). The exact nature and scale of the risks posed to humans by consumption of contaminated seafood is still uncertain (Smith et.al. 2018: 380 – 382). However, evidence suggests that such consumption may be particularly harmful to women’s reproductive health as a source of endocrine disruptors (Royte 2018). Third, there is emerging evidence to suggest that marine plastics may reduce atmospheric oxygen production by inhibiting the growth and functioning of Prochlorococcus — a photosynthetic microorganism that produces around ten percent of atmospheric oxygen (Zeldovich 2019). Finally, there is an indeterminable range of ways in which marine plastics are capable of reducing the profitability or viability of economic activities that people depend on as a source of income (reduction in harvestable marine resources, and a reduced market for marine ecotourism because of the aesthetic and ecological impacts of plastic pollution).
These impacts are unlikely to be felt equally. For developing countries that depend heavily on the ocean as a food source, significant loss of marine species could trigger food security concerns due to a potential lack of viable alternatives (Lloret et.al. 2016). In both developed and developing nations, the greatest burden will likely be borne by already vulnerable groups, including women, children, the elderly, indigenous peoples and local communities, and economically challenged coastal communities.
Implications for duty bearers
Under the International Covenant on Economic, Social and Cultural Rights (ICESCR), states are obligated to avoid unjustifiable retrogressive measures that would move them further away from fully realizing economic, social or cultural rights — including the rights to health and to food (CESCR 1991: para.9; 2000: para. 32). As noted by the ESCR Committee, “[i]f any deliberately retrogressive measures are taken, the State party has the burden of proving that they have been introduced after the most careful consideration of all alternatives and that they are duly justified by reference to the totality of the rights provided for in the Covenant” (CESCR 2000: para.32). Given the rate of plastic production continues to increase rapidly (Lebreton and Andrady 2019) and the expanding body of knowledge on the ways plastic pollution inhibits the enjoyment of human rights, continued action by states to allow harmful practices around the production, use and disposal of plastics may constitute a breach of the obligation of non-retrogression.
In addition, states have an obligation to ensure non-discrimination, which may be triggered by the uneven health and food impacts of plastic pollution and the subsequent impacts on marine biodiversity described above, which will likely perpetuate existing inequalities (CESCR 2000: para. 30, 34 and 43(a); 1999: para.18). The obligation of non-discrimination does not merely require states to refrain from discriminatory actions, but also to “take concrete, deliberate and targeted measures to ensure that discrimination in the exercise of Covenant rights is eliminated” (CESCR 2009: para.36).
Minimum core obligations related to the right to health, which states must prioritise, include: “(a) to ensure the right of access to health facilities, goods and services [including a healthy ocean as an underlying determinant of health] on a non-discriminatory basis, especially for vulnerable or marginalized groups; (b) to ensure access to minimum essential food which is nutritionally adequate and safe, to ensure freedom from hunger to everyone” (CESCR 2000: para 43). Similarly, the core component of the right to food requires that food be made available “in a quantity and quality sufficient to satisfy the dietary needs of individuals, free from adverse substances, and acceptable within a given culture” (CESCR 1999: para.8).
Finally, states must use “maximum available resources,” (ICESCR, Article 2(1)) including not only financial resources, but also human, technological, organisational, natural and information resources, in taking steps to realise the rights to health and food (see Bílková 2020: 24-25; Corkery and Saiz 2020: 286).
International legal framework in recycling marine plastics
In 2019, parties to the Basel Convention on the Transboundary Movement of Hazardous Waste and their Disposal agreed to address marine plastic pollution by designating as hazardous certain types of plastic waste. This resulted in amending the Convention’s Annex VIII to include plastic and plastic mixtures as a hazardous waste, and therefore subject to the Prior Informed Consent (PIC) procedure. In designating this waste as hazardous, potential importing countries must prove that they can deal with it in an environmentally sound manner, thus ensuring it stays out of the ocean. Significantly, countries now also have the right to turn down shipments of such waste, providing a measure of protection to developing countries without the means to deal with it.
In amending Annex IX, states specifically set out the type of plastic waste which is considered non-hazardous, and thus not subject to the PIC procedure, including plastic waste destined for recycling in an environmentally sound manner (including polyethylene (PE), polypropylene (PP), polystyrene (PS), and polyethylene terephthalate (PET)). Finally, states agreed to amend Annex II (which addresses those wastes for which special consideration should be paid) to include plastic waste and plastic waste mixtures, excluding those defined as non-hazardous and/or destined for recycling under Annex IX. The potential for abuse of this permission, however, is significant and would have detrimental effects to the marine environment as the ultimate dumpsite of plastic waste exported to territories without the capacity for environmentally sound management of such waste. We already have worrying examples. Before the amendment was discussed and agreed, the government of the Philippines threatened to return mislabelled household waste (103 containers of household trash, plastic bottles and bags, newspapers and used adult diapers) back to Canada (ABS-CBN News, 23 April 2019). This waste had been shipped out by a company tasked with waste recycling in Canada (ABS-CBN News, 23 April 2019)
With only nine percent of the world’s plastic ever having been recycled, and the vast majority going into landfills around the world (Geyer et.al. 2017), the Basel Convention plastics amendment may push for more recycled material in the plastics supply chain, thereby reducing the overall production of virgin plastic, although this is in no way guaranteed. The challenge in trying to shift the system towards recycled products, however, comes down to the high cost of recycling and of recycled products against the much lower cost of the production and sale of fossil-fuel based virgin plastic (The Guardian, 13 October 2019). This in turn leads to another question: have countries set up a global recycling scheme that was doomed to failure from the outset?
Another recent development under the Convention that could also have an effect on the success of the plastics amendment: the Ban Amendment. This amendment entered into force in December 2019. It provides for the prohibition of exports of all hazardous wastes covered by the Convention, including those plastic wastes identified as hazardous under Annex VIII, that are intended for final disposal, reuse, recycling and recovery from countries listed in annex VII to the Convention (Parties and other States which are members of the Organisation for Economic Co-operation and Development (OECD), European Community (EC), Liechtenstein) to all other countries. How these two amendments will work together remains to be seen, but one hopeful option may be that with certain plastic waste off the table for export altogether, more controls are put in place at the national and local levels to encourage recycling, thereby driving down the overall cost of recycled materials.
To summarise, plastics can have direct and indirect impacts on human health and the enjoyment of human rights. The One Ocean Hub’s written submission primarily considers the indirect impacts of plastics on human health through the conduit of the marine environment; specifically, marine biodiversity. Plastic pollution can harm marine species in a variety of ways, including through entanglement, suffocation and ingestion, which can lead to a plethora of health complications and mortality. Accumulations of plastics can also reduce the capacity for marine habitats to support life. There is also emerging evidence to suggest that marine plastic pollution serves as a vector for widespread transmission of pathogens.
The resulting harm to marine biodiversity yields a range of knock-on implications for humans that undermine the enjoyment of various human rights, including the rights to health and to adequate food. The resulting harm to human wellbeing includes a reduction in the availability of food from the marine environment; elevated food safety risks from seafood; impairment of essential ecosystem services; and potential loss of income generating activities that depend upon marine biodiversity. Furthermore, vulnerable groups are expected to suffer the greatest harm, ranging from developing states — particularly small island developing states — at an international level, to women, children, the elderly, indigenous and local communities, and coastal communities at a national level.
By undermining the full enjoyment of the rights to health and to food by rights holders, the harm to marine biodiversity from plastic pollution triggers a series of potential breaches of human rights obligations by states:
- a breach of the obligations of non-retrogression and non-discrimination;
- a breach of several minimum core obligations to ensure access to food of an adequate quality and quantity,
- a breach of several minimum core obligations to ensure access to the underlying determinants of health (which includes a healthy environment).
Finally, the accelerating harm to marine biodiversity as a result of plastic pollution could also conceivably amount to a violation of the obligation to use maximum available resources, since marine biodiversity itself is a resource that must be preserved and used sustainably.
Considering the restricted enjoyment of rights by rights holders and the above violations of human rights obligations by states, there are a number of actions that states should prioritise:
- undertaking and funding research into the impacts of plastics on human health and marine biodiversity;
- delivering capacity building and education initiatives to build awareness of these impacts;
- ensuring the enjoyment of procedural environmental rights;
- developing plans — including indicators, benchmarks and monitoring frameworks — to tackle the impacts of plastic on human and ocean health; and
- cooperating internationally to ensure a unified and targeted international response to the problem of marine plastic pollution, particularly to make plastics recycling and recycled plastic products the only option.
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