Legal Protection of the Marine Environment from Plastic Pollution in the Russian Federation

Kudelkin Nikolai PhD in Law Leading Scientific Associate, Department of Environmental, Land and Agrarian Law, Institute of State and Law of the Russian Academy of Sciences 119019, Russia, Moscow, Znamenka str., 10 nkkix@inbox.ru Other publications by this author

Problem statement. The Russian Federation is washed by the seas of three oceans: the Arctic Ocean (Barents, White, Kara, Laptev, East Siberian, Chukchi); the Pacific Ocean (Bering, Okhotsk, Japanese); the Atlantic Ocean (Baltic, Black, Azov). The length of Russia's maritime borders is 38.8 thousand km (see: On the state and Environmental protection of the Russian Federation in 2020. State Report. Moscow: Ministry of Natural Resources of Russia; Lomonosov Moscow State University, 2021. p. 9). These facts speak both about the importance of protecting the marine environment from pollution in order to ensure Russia's environmental safety, and that our country, due to its geographical features, is able to make a significant contribution to the protection of the World Ocean, which plays a crucial role in the life of the planet. The marine environment is of great benefit to humanity, starting from the provision of food, raw materials for medicines and ending with the fact that the sea coasts are an excellent place for recreation ^{[1, p. 84]}. The marine environment is home to a huge number of living creatures and produces approximately 70% oxygen (URL: https://www.theoceanpreneur.com/impact/ocean-education/seven-reasons-ocean-important / (accessed: 08/03/2022)). The ocean plays a key role in maintaining the climate on earth, being a huge natural reservoir of water, heat and CO2 ^[2]. At the same time, the marine environment as a result of anthropogenic activities is exposed to various negative impacts, including pollution. One of the currently common pollutants is plastic, which makes up most of the marine debris. In the XX century. due to its properties, such as strength, durability and low price, as well as a wide range of applications, plastic penetrated into all spheres of economic activity and everyday life. In recent decades, there has been a constant increase in the production of plastics and products made from them. The negative impact of plastic on nature is partly a continuation of its properties that make this material popular, mainly its durability and accessibility. Plastic eventually decomposes into microscopic particles, which are found everywhere, including in the ocean ^[3].

The sources of marine pollution by plastic are diverse, and the ways in which this type of pollution enters the ocean are numerous. It is believed that the largest part of plastic pollution enters the ocean from land, and the other – as a result of marine activities (for example, fishing, sea cruises). Sources of plastic pollution include household waste, sewage and industrial waste. It is also necessary to pay attention to the fact that rivers are one of the main ways of plastic entering the marine environment, plastic entering the river basin, for example, with storm drains, has a high chance of getting into the ocean ^[4].

Plastic is found in the marine environment almost everywhere, for example, this type of pollution is common in the Arctic, and even in areas where there is no active anthropogenic activity, such as deep-sea areas of the seabed. At the same time, plastic enters the waters of the Arctic Ocean not only from sources located in the Arctic, but also from remote regions, as a result of transport with ocean currents, air masses and river runoff. Once in the Arctic, plastic pollution has a negative impact on its sensitive ecosystems ^[5]. Thus, according to research data, in the Barents Sea in recent years there has been an increase in the level of plastic pollution ^{[6, p. 143]}, the proportion of plastic in marine debris on the bottom is about 47% and reaches 77% in surface waters ^{[6, p. 132]}. In general, plastic pollution of Arctic waters is currently assessed as a significant environmental problem and threat to marine ecosystems ^{[7, p. 264]}. In turn, the analysis of data concerning plastic pollution of the Russian seas suggests that studies have confirmed the presence of such pollution in 10 of the 12 seas of the Russian Federation (Bagaev A.V., Verzhevskaya L.V., Litvinyuk D.A. Review of microplastics research in Russia: sea, beaches, bottom precipitation // The seas of Russia: studies of coastal and shelf zones. Abstracts of the All-Russian Scientific Conference (XXVIII Coastal Conference). Sevastopol, 2020. pp. 226-227). The above facts speak of the urgent need to improve the efficiency of protecting the marine environment from plastic pollution, including by legal means, and confirm the high degree of relevance of the research topic.

Legal regulation of marine environment protection from plastic pollution. A number of federal laws directly related to the marine environment are in force in the Russian Federation, including Federal Law No. 155-FZ of July 31, 1998 "On Internal Sea Waters, the Territorial Sea and the Adjacent Zone of the Russian Federation" (Federal Law of the Russian Federation. 1998. No. 31. St. 3833) (hereinafter – the Law "On internal Sea Waters"), Federal Law No. 187-FZ of November 30, 1995 "On the Continental Shelf of the Russian Federation" (NW RF. 1995. No. 49. Article 4694) (hereinafter referred to as the Law "On the Continental Shelf"), Federal Law No. 191-FZ of December 17, 1998 "On the Exclusive Economic Zone of the Russian Federation" (SZ RF. 1998. No. 51. Article 6273) (hereinafter referred to as the Law "On the Exclusive Economic Zone of the Russian Federation zone").

Since the provisions concerning the protection of the marine environment contained in these laws are similar in many respects, it is advisable to consider them in a comprehensive manner.

Thus, according to Article 32.1 of the Law "On Internal Sea Waters", one of the basic principles of protecting the marine environment of internal sea waters and the territorial sea is the prevention of its pollution. In accordance with paragraph 2 of Article 33 of the Law under consideration, the maintenance of the marine environment of internal sea waters and the territorial sea in proper condition is ensured by rationing the quality of the marine environment. It is worth noting that rationing is an effective means of environmental protection and, accordingly, the development of special regulations concerning plastic (microplastics) can make a positive contribution to the protection of the marine environment from this type of pollution. In turn, according to paragraph 1 of Article 30 of the Law "On the Exclusive Economic Zone", the requirements for the prevention, reduction and control of marine pollution operating within the territorial sea and internal waters of the Russian Federation also apply to the exclusive economic zone of Russia. The Law "On the Continental Shelf" also contains a number of general provisions on the protection of the marine environment from pollution and affecting issues such as the disposal of waste and other materials (Article 34), assessment of compliance with mandatory requirements in the field of environmental protection (Article 32), etc. One of the legal means vital for controlling marine pollution, including plastic, is environmental monitoring. Its implementation is provided for by Article 36 of the Law "On Internal Sea Waters", Article 33 of the Law "On the Continental Shelf", Article 29 of the Law "On the Exclusive Economic Zone". According to paragraph 11 of the Regulation on the Implementation of State Monitoring of Water Bodies, approved by the Decree of the Government of the Russian Federation No. 219 of April 10, 2007 (NR RF. 2007. No. 16. St. 1921), the obligation to carry out regular observations of the state of surface water bodies in terms of quantitative and qualitative indicators of the state of water resources, inland sea waters and The Federal Service for Hydrometeorology and Environmental Monitoring is responsible for the territorial sea, as well as the continental shelf and the exclusive Economic Zone of the Russian Federation. As an example, we can cite such a project of Roshydromet as the integrated marine scientific expedition "Transarctica-2019", one of the tasks of which was to monitor the state and pollution of the marine environment (URL: https://www.meteorf.gov.ru/activity/water/arct/transarctic / (accessed: 05.07.2022)). In particular, during the expedition, data was collected on the contamination of the waters of the seas of Russia, including the Arctic zone, with marine debris, including microplastics (URL: https://www.meteorf.gov.ru/press/trans/19600/?sphrase_id=706297 (accessed: 05.07.2022)). Visual observations of anthropogenic pollution on the sea surface were also carried out during this expedition. According to the results of observations from the Mikhail Somov NPP, 250 encounters with floating garbage were recorded, for example, two plumes of anthropogenic garbage were observed, which mainly consisted of plastic bags and packaging materials ^{[8, p. 234]}.

It is worth paying attention to the fact that environmental monitoring is important not only to protect the environment and obtain data on its condition, but also to ensure the right of everyone to reliable information about the state of the environment provided for in Article 42 of the Constitution of the Russian Federation.

Of particular interest from the point of view of protecting the marine environment and the Arctic Ocean itself from plastic pollution is Article 32 of the Law "On the Exclusive Economic Zone", dedicated to the protection and preservation of ice-covered areas. This norm is based on Article 234 of the United Nations Convention on the Law of the Sea (concluded in Montego Bay in 1982) (RF Federal Law No. 48, Article 5493, 1997), according to which coastal States within their economic zone have the right to adopt and enforce non-discriminatory laws and regulations aimed at combating marine pollution from ships in ice-covered areas. It should be emphasized that Article 32 of the Law "On the Exclusive Economic Zone", in contrast to Article 234 of the above-mentioned Convention, refers to pollution of the marine environment in any way, and not only from ships. Thus, Russian legislation allows the adoption of special legal acts, including federal laws aimed at combating pollution of the marine environment of the ice-covered areas of its exclusive economic zone. It seems appropriate to develop legal regulation to combat plastic pollution of ice, as well as secondary pollution of the marine environment by plastic during the melting of sea ice – a problem that will probably have to be solved in the near future due to climate change. Also noteworthy is the issue of developing requirements for antifouling coatings of ships, which are one of the sources of microplastics entering the marine environment (URL: https://seas-at-risk.org/wp-content/uploads/2021/11/MEPC-77-8-1-Microplastics-from-anti-fouling-paints-an-overlooked-source-of-marine-plastic-litter-FOEI-Greenpeace-Internat....pdf (accessed 25.08.2022)), in order to protect the Arctic marine environment from such a pollutant.

Issues related to the protection of the marine environment from pollution are also addressed in strategic planning documents. Thus, in the preamble of the Environmental Doctrine of the Russian Federation, approved by the Decree of the Government of the Russian Federation dated August 31, 2002 No. 1225-r (NW RF. 2002. No. 36. St. 3510) (hereinafter referred to as the Environmental Doctrine), it is stated that overcoming the currently existing environmental crisis is possible only on the basis of the formation of a new the type of relationship between man and nature, which would exclude the possibility of destruction and degradation of the natural environment. This thesis is fully applicable to the problem of plastic pollution of the marine environment, since the poorly controlled turnover of plastic products at the global level (their entire life cycle) causes significant harm to the world's oceans. Accordingly, when forming a new type of relationship between man and nature declared in the Ecological Doctrine, this problem should be given one of the main roles.

One of the key factors of the degradation of the natural environment at the global level, the Environmental Doctrine refers to the insufficient level of coordination of the actions of the world community in the field of solving environmental problems for the transition to sustainable development. This thesis is confirmed, among other things, by the situation related to plastic pollution of the oceans, since many countries of the world contribute to this process to one degree or another, respectively, and it is necessary to solve this problem not only in each individual country, but also at the global level.

In the process of listing the main factors causing the degradation of the natural environment in the Russian Federation, the Environmental Doctrine calls the low level of ecological consciousness and ecological culture of the population of the country. This thesis is also interesting from the point of view of protecting the marine environment in particular and the environment in general from plastic pollution. Since people often do not attach importance to how serious the consequences of relatively harmless at first glance actions can be, such as refusing to sort garbage, leaving plastic products after outdoor recreation, for example near reservoirs, etc., they thus make a significant contribution to environmental pollution. According to paragraph 1 of the Environmental Doctrine, nature conservation and environmental improvement are priority areas of activity of the state and society. According to paragraph 3 of the Environmental Doctrine, one of the main directions of state policy in the field of ecology is the reduction of environmental pollution and resource conservation, to achieve this goal, it is proposed to develop systems for the use of secondary resources, including waste recycling, support for the production of goods designed for the longest possible use. This provision of the Environmental Doctrine is directly related to the problem under consideration, since the processing of plastic, its secondary use can reduce the ingress of such a pollutant into the environment. The replacement of disposable plastic products with durable products should be attributed to one of the main measures aimed at combating pollution of nature with plastic.

In order to achieve the goals of conservation and restoration of the natural environment, it is proposed to focus efforts on the conservation and restoration of freshwater and marine natural systems. It is obvious that it is hardly possible to achieve the set goals without solving the issues related to plastic pollution.

Paragraph 5 of the Environmental Doctrine, devoted to the implementation of state policy in the field of ecology, also refers to environmental education and enlightenment. The main task in these areas, the Doctrine under consideration refers to the improvement of the ecological culture of the population, the educational level and professional skills and knowledge in the field of ecology. From the point of view of protecting the environment in general and the marine environment in particular from plastic pollution, it is of particular importance to increase the ecological culture of the population, citizens should have the necessary knowledge about the harm of plastic (plastic garbage) to the environment in order to consciously minimize the ingress of household plastic garbage into nature.

One of the most important strategic planning documents affecting the protection of the marine environment is the Maritime Doctrine of the Russian Federation, approved by Presidential Decree No. 512 of July 31, 2022 (Official Internet Portal of Legal Information http://pravo.gov.ru , July 31, 2022) (hereinafter referred to as the Naval Doctrine). Thus, according to paragraph 11, paragraph 9 of the Doctrine under consideration, the prevention of pollution of the marine environment, including production and consumption waste, also belongs to the national interests of Russia in the World Ocean. This paragraph directly concerns the pollution of the marine environment by plastic, since plastic is part of the waste of production and consumption, for example, packaging of goods and food.

In accordance with paragraph 17, paragraph 50, one of the priorities of the national maritime policy in the Arctic regional direction is the conduct of comprehensive scientific studies of the state and pollution of the Arctic marine environment. The nature of the Arctic, including the marine environment, is extremely sensitive to pollution. Accordingly, in order to protect it, it is necessary to create special environmental requirements, which can be developed solely based on scientific data. Thus, conducting the necessary scientific research in the Arctic is also necessary in order to improve environmental legislation.

In order to protect and preserve the marine environment, the document under consideration provides for a number of measures, including those related to pollution. These include monitoring the state and pollution of the marine environment, as well as the implementation of comprehensive measures to prevent and eliminate the consequences of its pollution (paragraph 1, paragraph 78 of the Maritime Doctrine), stimulating the creation and procurement of domestic equipment for the prevention of pollution and elimination of the consequences of marine pollution (paragraph 6, paragraph 78 of the Maritime Doctrine).

The Strategy for the Conservation of the polar bear in the Russian Federation, approved by the order of the Ministry of Natural Resources of the Russian Federation No. 7-r dated March 1, 2022 (the document was not published), named a number of negative factors and threats to the polar bear. These include environmental pollution, and plastic is named as one of the pollutants, while it is emphasized that it enters the Arctic environment as a result of various anthropogenic activities. In turn, the sources of pollution can be located both in the Arctic region and beyond. Accordingly, the fight against plastic pollution of the marine environment will also contribute to the conservation of the polar bear.

It should be noted that in order to protect the marine environment from pollution in general and from plastic pollution in particular, due to the large volume of pollution coming from sources located on land, it is vital to protect surface water bodies, for example rivers, which can carry pollution into the marine environment. In accordance with Article 51 of Federal Law No. 7-FZ of January 10, 2002 "On Environmental Protection" (RF Federal Law No. 2. Article 133), it is prohibited to discharge production and consumption waste into water bodies, into catchment areas, into the subsoil and onto the soil (paragraph 2), if at the same time, such waste is subject to collection, accumulation, disposal, neutralization, transportation, storage and burial in accordance with the legislation of the Russian Federation. Part 1 of Article 56 of the Water Code of the Russian Federation (hereinafter referred to as the VC of the Russian Federation) also prohibits the discharge into water bodies and the burial of production and consumption waste in them. These provisions of the RF VC are of paramount importance for protecting the environment from getting into it plastic debris, as well as from secondary microplastics. From the point of view of the protection of water bodies from pollution by primary microplastics and nanoplastics, Part 6 of Article 56 of the Criminal Code of the Russian Federation has great potential, according to which it is prohibited to discharge wastewater into water bodies if the content of substances or compounds dangerous to health exceeds the established standards of permissible exposure. Accordingly, in the case of the development and approval of regulations on the content of plastic particles in wastewater (primarily microplastics and nanoplastics), it is possible to more effectively combat this type of pollution.

In this context, it is necessary to cite the opinion of E. V. Luneva about the need to expand the definition of the concept of "polluting substance" by including microplastics in its content ^[9]. This position of the author deserves support, however, it can be proposed to use instead of the term "microplastic", which, when mentioned in legislation, will require a legal definition, such a construction as "plastic particles in size from ... to ..", and accordingly set the size range of such particles. The proposed approach can be justified by the fact that specialists offer various classifications of plastic depending on the size, for example, megaplastic, microplastic, nanoplastics ^{[10, p. 27]}. And it seems that, if necessary, it is easier to change the size of plastic particles than to introduce new concepts into legislation.

Interesting for consideration are the currently existing legislative initiatives aimed at combating plastic pollution, which include the Draft Federal Law No. 7-1632 "On the Specifics of Regulating Certain Relations in order to Limit the Use and Turnover of Disposable Goods in the Territory of the Russian Federation, as well as Goods made of Certain Types of Polymer or Combined Materials and on Amendments to separate legislative acts of the Russian Federation" (hereinafter referred to as the Draft – No. 7-1632).

In general, the Project No. 7-1632 is aimed at limiting the turnover and use of disposable goods and some goods made of polymer or combined materials. At the same time, it is proposed not to extend such restrictions to medical devices, medicines, pharmaceutical products and tobacco products. The draft law under consideration contains definitions of basic concepts such as disposable and reusable goods, polymer materials, etc. The main idea of the Project – No. 7-1632 is a ban on the circulation of disposable goods made of polymer or combined materials, such as disposable tableware and cutlery.

According to this Bill, it can be said that, despite the fact that there are opinions that it is first of all necessary to improve the processing of plastic waste, and not to introduce a ban on certain types of plastic products (see: Conclusion on the draft legislative initiative No. 7-1632, prepared by the Commission of the Council of Legislators on Agrarian and Food Policy, Environmental Management and the ban on the use of disposable plastic goods is able to make a significant contribution to the cause of environmental protection. And first of all, because before processing, this product must be delivered, and not just left on the riverbank or thrown away with unsorted waste. From the point of view of protecting the marine environment from plastic pollution, such bans should first of all be introduced in public recreation areas on sea coasts and river banks, when providing tourist services in natural territories and water areas, including sea and river cruises. A similar point of view is shared by some domestic scientists conducting research in the field of legal protection of the environment from plastic pollution. Thus, E. V. Luneva expresses the opinion that in order to protect water bodies from pollution by secondary microplastics in Russia, measures should be taken to reduce the formation of plastic waste, including bans on the production and sale of certain goods, while the author emphasizes that this practice is widely used in foreign countries, for example in France ^[9].

Legal responsibility. In the context of the problem under consideration, the question of the effectiveness of legal liability in combating pollution of the marine environment with plastic seems interesting.

Thus, the Criminal Code of the Russian Federation (hereinafter referred to as the Criminal Code of the Russian Federation) contains Article 252, which provides for liability for pollution of the marine environment, including from sources located on land, which is especially important for plastic, which often enters the seas through rivers. This norm can also be applied in case of contamination with plastic garbage, for example, when it is discharged into the marine environment from vehicles. For the reasons mentioned above, Article 250 of the Criminal Code of the Russian Federation, which provides for liability for water pollution, can also contribute to the criminal protection of the marine environment from plastic pollution. However, it should be noted here that the above articles of the Criminal Code of the Russian Federation are used extremely rarely. For example, according to official data, in 2020 only five crimes under Article 252 of the Criminal Code of the Russian Federation were registered, while not a single criminal case was sent to court with an indictment or an act. During the specified period of time, 31 crimes under Article 250 of the Criminal Code of the Russian Federation were registered, and only three criminal cases were sent to court with an indictment or an act (see: On the State and on Environmental Protection of the Russian Federation in 2020. State Report. Moscow: Ministry of Natural Resources of Russia; Lomonosov Moscow State University, 2021. p. 758) Thus, it can be concluded that, unfortunately, the effectiveness of the above-mentioned articles is not very high, despite the potential they have for protecting the marine environment from plastic pollution.

In the Code of Administrative Offences of the Russian Federation (hereinafter referred to as the Administrative Code of the Russian Federation), from the point of view of protecting the marine environment from plastic pollution, Article 8.2, which provides for liability for non–compliance with environmental protection requirements when handling production and consumption waste, and Article 8.13, which provides for liability for violation of the rules for the protection of water bodies, are significant. It is worth noting that according to Article 8.2 of the Administrative Code of the Russian Federation in 2020, 3722 cases of administrative offenses were initiated, according to Article 8.13 of the Administrative Code of the Russian Federation – 24 (with M.: On the state and environmental protection of the Russian Federation in 2020. State Report. Moscow: Ministry of Natural Resources of Russia; Lomonosov Moscow State University, 2021. pp. 759-760). At the same time, despite the fairly frequent use of the above-mentioned articles of the Administrative Code, official sources speak of an extremely acute situation in the field of waste management of production and consumption. So, in 2020, prosecutors organized work to eliminate more than 9 thousand unauthorized landfills, 180 of them in water protection zones (with M.: On the state and on environmental protection of the Russian Federation in 2020. State Report. Moscow: Ministry of Natural Resources of Russia; Lomonosov Moscow State University, 2021. p. 760). In this regard, it can be concluded that it is advisable to tighten administrative responsibility in this area in order to increase its preventive function in relation to the category of acts under consideration.

Conclusion. Russian legislation contains the necessary foundations for combating plastic pollution of the marine environment, but it needs serious development. In particular, it seems logical to establish a ban on the use of disposable plastic products in the implementation of recreational activities on the seashore and directly in the marine environment. Also, in the context of the problem under consideration, it seems possible to express the opinion that, despite the fact that the norms regulating issues related to environmental protection from plastic pollution, due to the seriousness of the problem, it is necessary to develop and improve, one of the main roles in solving this issue will have to be performed by environmental education and enlightenment, which should contribute to the formation of the correct ecological culture of citizens, including in the field of handling products (products) consisting of plastic or containing it in its composition.