The Legal Framework for the activities of the Ocean Cleanup: the freedom to use the high seas to protect and preserve the marine environment

Talitha Ramphal

1.         Introduction

Plastic marine litter is growing, negatively affecting ecosystems, biodiversity and human health globally, and luckily awareness of this issue has grown as well on the international stage. For example, the EU adopted the Single Use Plastic Directive, which states in its preamble that the ‘Union must play its part in preventing and tackling marine litter and aim to be a standard setter for the world’. With this Directive, the EU aims to achieve an ambitious and sustained reduction of single-use plastic products within its Member States. The private sector also pursues another way to tackle this issue, e.g., the  Ocean Cleanup, which is a foundation registered in the Netherlands that develops technologies to clean up ocean plastic pollution.

The objective of the Ocean Cleanup is to reduce the amount of floating plastic in the oceans. The Ocean Cleanup developed System 001/Bwhich captures and collect plastic debris in the Great Pacific Garbage Patch. In addition, the foundation developed an interceptor, which intercepts the plastic pollution in rivers. The system, however, is used on the high seas.

The activities of the Ocean Cleanup raise a distinctive legal question: what international legal framework is applicable to the activities of the Ocean Cleanup on the high seas? For the activities of the Ocean Cleanup on the high seas, the Ocean Cleanup and the Netherlands agreed on a contractual legal framework that will be discussed in detail below.

2.         The Agreement between the State of the Netherlands and The Ocean Cleanup concerning the deployment of systems designed to clean up plastic floating in the upper surface layer of the high seas

The Ocean Cleanup’s System 001/B consists of a long floater, which sits at the surface of the water, and a skirt that hangs directly underneath the long floater. Because of the long floater, it floats independently from any ship. It isnot registered as a vessel under Dutch Law and therefore, it does not operate under the Dutch flag. It would, however, be possible since a vessel is defined in Article 1 of Book 8 of the Dutch Civil Code as ‘all things, other than aircraft, which, according to their construction, are destined to float and which float or have done so’. The system and interceptor fall within this definition as the system and interceptor floats. The non-registration of the system and the interceptor as a vessel leads to the non-applicability of the laws concerning vessels operating under a Dutch flag.

Notably, the System 001/B does carrythe Dutch flag for practical purposes instead of legal ones.

Under the United Nations Convention on the Law of the Sea 1982 (UNCLOS), the Netherlands is obliged to have a duty of care in relation to all activities that are conducted under its control outside those areas where they exercise sovereign rights.

For that reason, on June 8, 2018, an Agreement was concluded between the Netherlands and the Ocean Cleanup to provide for a clear legal framework for the Ocean Cleanup’s activities. This Agreement is as much as possible in line with Dutch maritime rules and the international rules concerning marine scientific research.

In the preamble of the Agreement, it is stated that ‘this agreement was drawn up, by analogy to the options presented under article 238 et seq. of the UN Convention on the Law of the Sea (UNCLOS) on marine scientific research’. It is very questionable whether the international legal framework on marine scientific research should be applicable to the activities of the Ocean Cleanup, considering the aim of the Ocean Cleanup and the place of those rules when the phase of scientific research for the working of the system is over.

3.         The aim and purpose of the Ocean Cleanup

The aim and the purpose of the Ocean Cleanup is to clean up the ocean plastic pollution in the waters. To achieve that aim, the Ocean Cleanup conducts scientific research. Scientific research is not an aim itself, but a means to achieve the aim.

Furthermore, in the commentary of the Agreement, it is stated that the key interests of the parties are: (i) the safety of the shipping; (ii) the protection of the marine environment; and (iii) the safeguarding of other uses of the high seas. Those interests must be taken into account in the preparation and implementation of the activities of the Ocean Cleanup. Marine scientific research is not mentioned as a key interest.

The question arises whether the Ocean Cleanup could do their activities in the high seas under another legal basis, which would be a better fit.

4.         The aim and the objectives of UNCLOS

The aim and purpose of the Ocean Cleanup is in line with the aim and objectives of the UNCLOS, since the preamble of the UNCLOS states that the legal order for the seas and the oceans promotes ‘the conservation of their living resources, and the study, protection and preservation of the marine environment’.

5.         Article 87 UNCLOS and the right to use the high seas to protect and preserve the marine environment in the interests of mankind?

As Hugo Grotius argued, in his work Mare Liberum, the use of the high seas is a right that belongs to all nations. The freedom of the high seas is a right under customary international law accorded to the sovereign states. This is also codified in Article 87 UNCLOS that provides that the high seas are open to all States to make use of the freedoms in the interests of mankind. The freedoms stipulated in Article 87 UNCLOS are: (a) freedom of navigation, (b) freedom of overflight, (c) freedom to lay submarine cables and pipelines, (d) freedom to construct artificial islands and other installations, (e) freedom of fishing and (f) the freedom of scientific research.

However, the freedoms stipulated in Article 87 UNCLOS are not exhaustive. As discussed above, the Agreement is based on the freedom of scientific research. The question arises whether there is a freedom that covers the main activity of the Ocean Cleanup which is to clean up the ocean plastic pollution.

6.         Protection and the preservation of the marine environment

6.1 The protection and the preservation of the marine environment is in the interests of the entire international community

According to the Commentary to the draft articles of the International Law Commission concerning the law of the sea (1956), of which article 27 is similar to article 87 UNCLOS,  the rights relative to the conservation of the living resources of the high seas safeguards the interests of the entire international community. This also means that the protection and preservation of the marine environment is in the interests of the entire international community. As in the Southern Bluefin Tuna case, International Tribunal for the Law of the Sea held that the conservation of the living resources of the sea is an element in the protection and preservation of the marine environment.

6.2 The UNCLOS obligations concerning the protection and preservation of the marine environment

Part XII of UNCLOS deals with the protection and preservation of the marine environment, which also provides for an obligation of the States to protect and preserve the marine environment by e.g. taking all measures necessary to prevent, reduce and control pollution of the marine environment from any source (article 194 UNCLOS).

The obligation to protect and preserve the marine environment indicates a further obligation than to prevent substantive pollution. It also means that existing pollution should be diminished, as the term preservation also implies that the present condition must be improved.

7.         The freedom to use the high seas for the protection and preservation of the marine environment

Considering that the protection and preservation of the marine environment is in the interest of the international community and it provides for the obligation of States to improve the current state of the high seas in relation to the plastic pollution, there should be a right on the other side of the coin. The right to use the high seas to protect and preserve the marine environment, for example, to improve its current state by diminishing existing pollution. To diminish the existing pollution should not depend on whether scientific research is conducted. It should be a freedom of itself.

8.         Conclusion

For the reasons mentioned above, a ground for the use of the high seas should be the freedom to protect and preserve the marine environment, which consist of inter alia the right to use the high seas to prevent, reduce and control marine pollution from any source and the right to use the high seas to conserve the living resources. Such a ground flows from the obligations of the States in the Law of the Sea and would adhere to the activities of the Ocean Cleanup.

Talitha Ramphal is currently working at a Law Firm in Rotterdam. In 2018, she graduated cum laude in Public International Law from Leiden University. She obtained a master's in Dutch Private Law as well. During her studies, she has worked as a student-assistant and completed multiple international-oriented interships.