Dealing with marine debris the ASEAN way

According to current estimates, about eight million tonnes of plastic waste are dumped into the ocean every year. As per a 2019 Report by the Ocean Conservancy and McKinsey Centre for Business and Environment more than half of this comes from just five Asian countries: China, Indonesia, the Philippines, Vietnam and Thailand. All of these excluding China recently signed the Bangkok Declaration on Combating Marine Debris in the ASEAN Region and the ASEAN Framework of Action on Marine Debris recognizing the transboundary nature of the problem and its devastating ecological and financial costs. The Declaration and Framework follow the trend of using informal mechanisms to deal with conflicts, including few legally binding arrangements – the ASEAN Way. This leads to questions about their effectiveness in dealing with the problem of marine debris.

Oceans provide various ecosystem services, including livelihoods, food, recreation and social- cultural well-being, dependent on the continued health and resilience of marine ecosystems. However, their health and resilience are being negatively impacted by a number of persistent drivers, undermining the oceans’ ability to continue to provide these services. One of the most pressing of these drivers is marine debris. Marine debris, from both land- and sea-based sources, has wide-reaching impacts, ranging from negative impacts on marine organisms, their habitats and ecosystems, to socioeconomic impacts such as those on human health and well-being, in addition to the aesthetic.

Realizing the urgency of dealing with marine debris and their central role in protecting the world’s oceans, the ASEAN countries adopted the Bangkok Declaration on Combating Marine Debris in the ASEAN Region and the ASEAN Framework of Action on Marine Debris, in their 34^th session held at Thailand in June 2019.

The Declaration focuses on strengthening local laws and cooperation to combat marine debris. It adopts a ‘land-to sea approach’ and recognizes the importance of multi-sectoral coordination, especially the engagement of the private sector and investment in preventing the problem of marine debris.

The Framework has several important features. It recognizes debris produced from both sea- and land-based activities; with the latter being particularly important since land-based sources such as industrial outflows and improper waste disposal are the biggest contributors to maritime pollution. The Framework plan also incorporates the possibility of establishing an ASEAN Centre on Combating Marine Debris. The Centre would act as a source of information for ASEAN member states, promoting cooperation and coordination between them. The Framework further recognizes the importance of integrating scientific knowledge with policy decisions, including the participation of scientists in the decision-making process. To enhance plastic value chains and improve resource efficiency the Framework suggests adopting strategies such as the circular economy. This strategy prescribes minimizing the disposal of waste and the need for raw materials through the 5Rs: reduce, reuse, recycle, refurbish and remanufacture materials in production, distribution and consumption processes.

While certainly an encouraging start to dealing with the problem of marine debris, the Declaration and Framework fall short of truly addressing the problem. Firstly, neither the Framework nor the Declaration specifically ban single use plastics or imports of foreign waste, as was demanded by environmental groups ahead of the Thailand summit. Since China’s 2018 decision to ban the import of recyclable plastic, scrap paper and other materials that could potentially contribute to pollution, a large percentage of this unwanted plastic from developed countries such as the United States and Japan has funneled into the ASEAN nations of Vietnam, Malaysia, and Thailand. According to one estimate from the International Trade Centre, in 2018, ASEAN’s plastic waste imports surged to 27 percent of the world’s total, from just 11 percent in 2017. While some ASEAN countries like Malaysia have fought against such imports by shipping back the waste to the country of origin, a concerted effort on the part of all ASEAN nations to enforce a region-wide ban on all plastic imports is needed.

Secondly, ASEAN has a strict code of non-interference that leaves the necessary decision-making process in the hands of member countries. This approach was helpful in the formative years (1960-70s), allowing states to deal with their domestic problems without intervention from other members states. Today, however, the organization needs a change to a more rules-based regime and stronger regional integration in order to be effective. The adoption of the ASEAN Charter in 2008 gave rise to hopes for such a  rules-based system with institution building mechanisms. The Charter stated the ASEAN states’ ambition to become a ‘rules-based’ community respecting the rule of law. However, the Framework and Declaration on Marine Debris signal a return to the informal and subjective approach of the old ASEAN Way.

Looking back at this way, ASEAN’s environmental treaties have not been very effective in dealing with their targeted environmental issues. A case in point is the ASEAN Agreement on Transboundary Haze Pollution (AATHP), signed in response to the haze crisis between 1997 and 1998, in which huge forest fires in Indonesia created a thick smog, affecting the neighboring countries of Singapore, Malaysia, Thailand and the Philippines. The Agreement, failed to tackle the problem of haze, for the major reason that it also follows the ASEAN Way. It lacks enforcement mechanisms and relies on negotiation and consultation to resolve disputes instead, with no possibility of taking recourse to any legal consequences for non-compliance or breach of the Agreement. The ASEAN Way protects member states from having to commit to joint tasks that might be too demanding. Despite the Haze Agreement, haze pollution reached alarming levels in Indonesia, Singapore and Malaysia in 2013, with some reports touting it as the worst haze crisis ever. Taking this into account, one must conclude that the Haze Agreement failed, demonstrating the ineffectiveness of the pre-ASEAN Charter modality of the ASEAN Way in dealing with environmental issues.

While the ASEAN Marine Debris Framework does implement a number of measures, activists are worried that this does not go far enough. The ASEAN Member States must create legally binding rules and deviate from the ASEAN Way in order to stop the ASEAN Marine Debris Framework from going the route of the Haze Agreement.

Harsh Mahaseth is an LLM candidate in Asian Legal Studies at the National University of Singapore. With an aim to promote peace in Asia and further the academia of the region he has been dedicated to the areas of Asian Studies, Public International Law and Human Rights.

Shubhi Goyal is a graduate of NALSAR University of Law, Hyderabad and is currently placed as an In-House Counsel with a private sector bank in India. She is deeply interested in International Environmental Law, having had a chance to take a course in it at Lewis and Clark Law School, Portland.

Disclaimer: All views in this post are personal.

Cite as: Harsh Mahaseth & Shubhi Goyal, “Dealing with marine debris the ASEAN way. A critical analysis of the ASEAN Framework of Action on Marine Debris and its impact”, Völkerrechtsblog, 22 April 2020, doi: 10.17176/20200422-182248-0.