Annex V to the MARPOL Convention is most often cited
for the prevention of ocean plastics pollution since it addresses
the problem of plastic expressly. Annex V imposes
a complete ban on the disposal of all forms of plastic
at sea (IMO, 1972). However, MARPOL, like UNCLOS, has
created a complex permitting system to allow for certain
types of dumping at sea and leaves the enforcement
through fines and fees to individual states. Unlike UNCLOS,
MARPOL does not afford dispute resolution mechanisms
unless the states have agreed to particular fora
outside MARPOL. The trend of avoiding the land-based
pollution problem also continues in MARPOL.
Rehabilitation projects such as The Ocean Cleanup provide
an option for rehabilitation that can supplement
prevention regimes in an attempt to fully mitigate the
problem of ocean plastics. Finding room for rehabilitation
projects among prevention-focused regimes poses difficult
definitional questions, some of which can be solved
through a broad and constructive reading of UNCLOS.
Law of the Sea
UNCLOS is the only international framework that deals
directly, though not in depth, with installations on the
high seas2. UNCLOS is the most authoritative and extensive
maritime treaty and speaks to general principles for
activities in international waters. The convention is generally
considered to reflect customary international law.
According to UNCLOS Article 87, no state may exercise
sovereign rights over the high seas; all states are free, inter
alia, to navigate, construct installations, and conduct
2 The terms “international waters” and “high seas” are used synonymously to refer to the mare liberum or trans-boundary waters outside
of national jurisdiction. This paper adopts the definition from the United Nations Convention on the Law of the Seas – waters outside the
EEZ (and the territorial and contiguous zones) of any state and any extended continental shelf claims under Article 76.
4 E.g. the Cartagena Convention, which deals primarily with pollution from ships in the Caribbean Region.
5 London Dumping Convention “Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter 1972.”
6 OTEC on high seas
scientific research in international waters. Though installations
are not explicitly defined in UNCLOS, the Drafting
Committee of the Third UN Conference on the Law of the
Sea understood them to include artificial (i.e. manmade)
structures and islands (Nordquist, Nandan, & Kraska,
2011).
The few provisions in UNCLOS applying to installations
in international waters are largely independent of a particular
purpose (i.e. installations are not restricted to issues
of shipping, research or any particular field). However,
UNCLOS pays consistently special attention to the
freedom of scientific research on the high seas, such
that installations for scientific research are provided
their own section (Part XIII, section 4). Marine scientific
research, like any scientific research, seeks to “observe,
explain, and eventually to understand sufficiently well
how to predict and explain changes in the natural (marine)
world” (Wegelein, 2005). It would be difficult to argue
that an ocean cleaning platform’s dominant purpose
is scientific research.
As discussed above, their purpose appears to be largely
environmental and rehabilitative, a purpose that remains
undefined and unregulated in international maritime law.
Part XIII Section 4 serves generally to limit the scope of
scientific installations, rather than to regulate activity,
placement, longevity or any other of the myriad concerns
with installations on the high seas. It provides, inter alia,
that installations do not have EEZs or territorial waters
and that they do not possess the status of islands. It is
important to note, however, that Article 264, Section 6
Part XIII deals with the settlement of disputes regarding
the conduct of marine scientific research and/or installations.
The procedure involves conciliation and, failing
that, binding adjudication by the International Tribunal
for the Law of the Sea, the International Court of Justice,
or an arbitral tribunal (Article 287). It is unclear whether
the ocean cleaning platforms would fall under the
framework set out for research installations, since their
dominant purpose is not research. It is possible that environmental
purposes could be equated with scientific research.
However, the derivation of economic benefit, even
indirectly, from the activities could make the conduct too
commercial to fall under the research framework or create
a convincing parallel.
In distinguishing “installation” from “equipment” (another
UNCLOS term from Article 258), the former takes on
a sense of longevity (i.e. permanency) and purpose. This
inference is supported by certain limitations on the purpose
of installations under UNCLOS, demonstrating that
installations are structures constructed for a particular
purpose, some of which are prohibited: they must be
peaceful (i.e. non-mi