Abstract
In June 2023, the second session of the Intergovernmental Negotiating Committee (INC) to develop an international legally binding instrument on plastic pollution, including the marine environment concluded. It provided an opportunity to gauge the progress made by States and other stakeholders towards agreeing on the potential objective and treaty architecture of a future plastics treaty which is planned to be agreed upon by the end of 2024. This brief intervention outlines the developments made, as well as potential contentious issues that have arisen in relation to procedural and substantive aspects of the negotiations. It also reflects on key highlights.
Introduction1
The second negotiation round towards the adoption of a global plastics treaty was concluded at the premises of UNESCO Headquarters in Paris, France on 2 June 2023. The objectives of the second session of the Intergovernmental Negotiating Committee (INC) to develop an international legally binding instrument (ILBI) on plastic pollution, including in the marine environment, were to advance the development of the instrument as well as to identify areas where more information is required to inform and support the negotiations, and any other additional work to be carried out during the intersessional period.2 The participating Committee Members were also to decide upon the necessary procedural and organisational matters for the continuation of effective negotiations.3
In the following sections, a brief overview of the events leading to INC 2 is presented, followed by a synthesis of the procedural and substantive matters discussed. One of the major outcomes of the second session of the INC (INC 2) was the agreement to develop a zero draft of a treaty text before the third session of the INC in 2023, as informed by the exchanges at INC 2.
Background to INC 2
The mandate to convene an INC towards the development of a global plastics treaty was initiated during the 5th meeting of the United Nations Environment Assembly (UNEA) in March 2022.4 The mandate provided was to develop an international legally binding instrument on plastic pollution, including in the marine environment, by 2024. The treaty is intended to include plastic pollution along the full life cycle, including upstream, midstream and downstream measures. At the 5th meeting, the Assembly Members reached a broad agreement on what should to be included in the agreement, which ranges from objectives, reporting, scientific and socioeconomic assessment, capacity, technical assistance and a compliance regime.
The first session of the INC (INC 1) took place in Uruguay in November 2022. It was preceded by a multi-stakeholder forum.5 The role of the first INC was to launch negotiations and explore the core issues identified in the resolution. Committee Members discussed objectives, the potential structure and potential obligations of a treaty. Discussions also covered finance mechanisms, a meaningful engagement of stakeholders as well as the inclusion of certain principles in the proposed treaty. During INC 1, organisational and substantive matters were discussed, including the scope, objectives and structure of the instrument and further sequencing of the work.6 A suite of differing views were on show during INC 1 concerning the elements of a treaty as well as regarding a potential implementation mechanism. Rules of procedure were also considered, which related mainly to voting rights.7
Throughout INC 1, there was a lot of discussion about the responsibilities of developed countries and developing countries, and the application of the principle of common but differentiated responsibilities.8 This concept has arguably hampered implementation of other international treaties, such as those of the climate change regime,9 but it seems the principle will most likely play a significant part in this treaty.10 Not only did countries repeatedly call for its inclusion, its relevance was mentioned during discussions of the means of implementation, such as funding and capacity-building.11 Several delegations also highlighted the role of the precautionary principle or polluter pays principle.12 However, a further discussion on principles is to be expected at the third session of the INC in November 2023 in Kenya.
Procedural Aspects of INC 2
As stated in the scenario note for INC 2, the Chair’s intention for the meeting was to ‘move swiftly through the opening of the session to launch our work on the substance of the negotiations as quickly as possible’.13 However, the first two and a half days of the meeting were dominated by prolonged discussions regarding voting rights and rules of procedure. Both of these issues were carried over from INC 1,14 and it was intended that final rules of procedure would be adopted at INC 2.15 This process of agreeing to procedural rules is necessary because there are no predefined procedural rules for the negotiation of a multilateral environmental agreement (MEA) in the United Nations (UN) system; every conference must adopt its own rules of procedure.
The initial plans to conduct consultations on this item throughout the week were stalled by multiple interventions and protracted discussions on whether the rules of procedure ought to be adopted before negotiations on substantive issues commenced. After several hours of recess on the second day of the session, it was announced that an interpretative statement had emerged. This statement is ambiguous,16 but it seemingly forestalled further discussions on this issue and allowed the negotiations to move towards substantive issues. As has been demonstrated in other MEAs, rules of procedures and the vote by consensus has been subject to difficult discussions and a delay of a decision on the mode of decision-making can impact the implementation and further work of an agreement.17 In the context of the plastics treaty negotiations, it is important to understand that consensus is not unanimity, even though both imply that there is no dissenting opinion.18 A decision is unanimous when all parties are in agreement.19 On the contrary, consensus is seen as having a general agreement in place with some countries disagreeing, but staying silent when there is an opportunity to object or block a proposal.20 Implementing unanimity may demonstrate a high level of legitimacy,21 but may simultaneously imply that this is based on the lowest common denominator and ambition among all countries.22 To explore the meaning of consensus within a MEA, the ‘consensus continuum in multilateral agreements’23 should be explored. This may include standing aside when a decision may not be in the interest of a State, but does not weigh heavy enough to block it.24
Substantive Issues at INC 2
Pursuant to the mandate provided by INC 1, the Secretariat, in consultation with the Chair and in consideration of the views expressed by Member States and stakeholders, developed a note on the potential options for elements towards an international legally binding instrument, based on a comprehensive approach that addresses the full life cycle of plastics.25 The Member States were invited to use this non-exhaustive options paper as a basis for discussions to present views on the objectives and architecture of the proposed instrument.
The work to further develop the core elements of the draft ILBI was approached by dividing the INC into two contact groups in which Committee Members as well as intergovernmental organisations and stakeholders such as non-governmental organisations and industry organisations were able to express their positions. One contact group was mandated to address the objective(s) and substantive obligations, the other contact group was asked to consider means of implementation, implementation measures and additional matters.26 The contact groups were to consider and recommend potential options for elements of an instrument and identify remaining gaps. The work of each contact group is considered in turn.
Discussions on Objectives, Core Obligations, Control Measures and Voluntary Approaches in Contact Group 1
The work undertaken by Contact Group 1 on the objective(s) and core obligations has significant implications for any subsequent compliance, implementation and financing approaches within the future treaty regime.27 In terms of objectives, many Committee Members expressed a preference for a focused and precise set of objectives, and suggested options ranging from ending plastic pollution to the reduction in the production, use and discharge of plastic as well as implementing a circular economy.28 Other options flagged included references to a human rights approach, waste management and legacy plastics.29 Some Committee Members favoured a time-bound target so as to enable and facilitate the monitoring of progress. The measures deemed to be necessary to achieve the objectives are complex, manifold and certainly not yet streamlined among the Members. The interventions made it evident that there are still a suite of diverse options and opinions.
Committee Members provided a range of options for the core obligations, control measures and voluntary approaches.30 These included: phasing out and/or reducing the supply, demand for and use of primary plastic polymers; a ban; phasing out or reducing the use of problematic and avoidable plastic products; and controls on the production, consumption and use of chemicals and polymers of concern as well as the reduction of microplastics.31 The Committee Members had converging views on the adverse effects of microplastics and the need to develop corresponding measures to reduce leakages of microplastics into the marine environment.32 Further, the inclusion and strengthening of waste management was supported by several Committee Members, which also highlighted the importance of avoiding duplication with existing agreements, such as the Basel Convention.33 Several Members supported the establishment of circularity design criteria schemes and certification schemes for market placement.
Some Committee Members supported setting targets for the ban/phase out, recycling, reduction, reuse and repair of plastic products while others objected to the inclusion.34 Some delegations also highlighted the importance of criteria to determine suitable alternatives as well as unintentional consequences of these alternatives on human health and the environment. Discussions also included consideration of how to accommodate traditional and indigenous peoples knowledge and local knowledge systems. Biobased and biodegradable plastics as alternatives to fossil-based plastics were also considered and some warned against using these as substitutes and alternatives. The financial and technical and technological implications of using substitutes and alternatives were highlighted by several Members. Several Committee Members supported the inclusion of measures (potentially in a legally binding format) on the release and emission of plastic to water, soil and air.35
In relation to existing plastic pollution, Members highlighted the importance of addressing legacy pollution, whilst some put forward proposals to address fishing gear as a priority.36 A particular issue which was mentioned on several occasions was the need for a just transition to low plastic economies. The concept of just transition was also often mentioned in the context of the informal waste sector, waste pickers and poverty alleviation. Some references were made to the human rights approach as well as the recently recognised right to a clean and healthy environment.37
Discussions on Means of Implementation, Implementation Measures and Additional Matters in Contact Group 2
The second Contact Group was charged with considering the implementation of a future plastics treaty. This included options such as the development of National Action Plans (NAPs), exchange of information, stakeholder engagement, awareness raising, research and capacity-building and technical assistance, as well as compliance, monitoring and reporting.38
One of the central mechanisms to support the implementation of a potential plastics treaty is envisaged through NAPs. NAPs have been used to implement a wide range of multilateral environmental agreements and serve as tools to develop and coordinate policy and legal measures under an instrument.39 The exchange of views made evident that many countries see NAPs as a fundamental tool and backbone of the treaty.40 However, some countries took the view that NAPs should be one of several measures, and that they should not serve as an objective in themselves. Differing views were also expressed concerning whether the framework and targets of the NAPs should be set out within a global plastics treaty or whether this should be nationally driven. Some Committee Members highlighted the linkages to reporting and the setting of targets, indicators and timelines, while cautioning also about the potential burden of reporting requirements. Diverging views were also expressed in relation to whether the NAPs should be assessed in a national context or through a dedicated scientific, technical or economic mechanism within the treaty architecture. Accordingly, they presented options taken from best practices in waste management or traditional and indigenous knowledge. There appeared to be strong support for the development of a multi-stakeholder forum within the treaty architecture. Even though further details were not touched upon, the multi-stakeholder forum could provide an important platform to exchange information and to understand and explore new and emerging issues which should be considered from a broad and even informal perspective and without the formal constraints of a Conference of the Parties setting. The discussions on awareness raising and education showed that there was convergence on these issues with some Members also calling for binding measures that would cover behavioural change and capacity-development in the treaty text.41
The discussions on research were framed by the recurrent calls to develop an evidence-based instrument which in a yet to be determined form utilises scientific, socioeconomic and technical information, including that of indigenous peoples and local communities.42 Discussions further touched on the possible choices between having a dedicated scientific and socioeconomic assessment panel or coordination and collaboration with the proposed Science-Policy Panel on Chemicals and Waste.43 Overall, institutional cooperation and coordination among actors across the UN system was highlighted, which must also include actors beyond the environmental scope stricto sensu, such as the International Maritime Organization (IMO), the UN Food and Agricultural Organization (FAO), as well as standards-setting organisations, such as the International Organization for Standardization (ISO).44 As has been expressed by some stakeholders and States, these efforts must be complemented by creating synergies and avoiding duplication with existing MEAs. The delegations discussed south-south cooperation, north-south cooperation as well as public-private partnerships. Cooperation and implementing a public-private partnership approach were also highlighted in the context of financial assistance, or as several countries preferred to call it, a financial mechanism and capacity-building. Differing views were expressed in relation to whether a dedicated multilateral fund should be established or whether existing financing mechanisms, such as the Global Environment Facility, should be used.45 The discussions covered a wide range of issues including the specific support for least developed countries and small island developing States (SIDS), so as to ensure that funding is needs-based and specifically targeted towards countries with limited capacities. It was also proposed that such a mechanism supports an integrated approach with associated environmental issues which are related to the plastic pollution management regime, such as climate change or chemical management. There was agreement that funding could be generated from private and public sources. This may also be leveraged from the application of economic instruments, such as fees, taxes, levies or extended-producer responsibility.46
Some of the responses to plastic pollution are highly technical in nature and several countries highlighted the need to include a dedicated article on technology transfer in a treaty which would also include and consider intellectual property or licensing agreements.47 Technical assistance ought to focus on the development of infrastructure, alternatives and enhancing skills for stakeholders.48
The discussions on a compliance mechanism demonstrated that there was some preference for a non-adversarial and non-punitive mechanism with the possibility of establishing a committee for this purpose.49 There were, however, differing views on what kind of details should be regulated in the treaty itself and it was noted that it may be too early to consider such details given the yet to be negotiated objective(s) and core obligations of the agreement. In this regard, national reporting was met with strong support for inclusion as a legally binding obligation, although diverging views were expressed on the extent of such reporting.50
Reflections
INC 2 was an important milestone in developing the overall objective(s) and architecture of the potential plastics treaty. A lot was covered under an ambitious agenda. The lengthy debate (and still only provisionally agreed position) on procedural matters limited the time that could be spent on substantive and material aspects of the treaty. It still needs to be determined whether decisions under the treaty will be taken by consensus or by voting or by a combination of both, and it is a matter of urgency to address this aspect so as to create procedural certainty.
Notwithstanding this, the discussions based on the options paper revealed some areas of convergence and disagreement. One of the major outcomes is that Committee Members gave the mandate for the development of a zero draft for discussion at the third session of the INC in November 2023 in Nairobi, Kenya.51 This indicates that progress has been made to move towards text-based negotiations. Committee Members seem to be in broad agreement that the prevention of plastic pollution, also in the marine environment, should be one of the core obligations of the agreement, even though the exact measures to achieve this are still to be determined. The exchange of information and submissions made it clear that whereas initially the impact of marine litter on the marine environment was a major driver to develop the treaty, it has increasingly moved away from being an exclusive marine environmental treaty. This is enabled mainly through the inclusion of the life-cycle of plastic pollution. Therefore, the treaty does not focus only on the end-of-life of any given plastic product, but it will most likely also address upstream measures, including chemicals. The marine elements of the treaty will range from remedial and clean-up measures of legacy pollution in the marine environment to the application of waste management approaches and extended polluter responsibility to manage vessel-based garbage in ports, by way of example. It will be important to understand the normative value of a provision on fishing gear in the proposed treaty and how it relates to Article 211 of the UN Convention on Law of the Sea52 and the work of the IMO or FAO as well as regional fisheries organisations. It remains to be seen which other marine elements will be agreed upon during the remainder of the process.
It was encouraging to see that a strong emphasis was placed on coordination and cooperation across sectors and actors, with a particular focus also on support for and inclusion of vulnerable interest groups such as waste pickers and indigenous peoples and communities. It is noteworthy that SIDS formed a strong voice to include specific and targeted considerations for their needs in the potential capacity-building measures, the potential compliance and implementation and financial mechanisms as well as technical assistance. This was framed by the recurrent reference to develop a treaty which applies a human-rights based approach and to understand equity issues also associated with chemicals.
Way Forward
INC 2 concluded with a mandate to the Chair to prepare a zero draft of the treaty ahead of INC 3, which will take place in Nairobi, Kenya in November 2023. The zero draft was published on 4 September 2023.53 It is expected that a synthesis paper will be developed in preparation for the meeting, and for discussion during INC 3 to address items not covered in the option paper, such as principles and scope. These matters will be discussed during an additional day. In the interim, some possible issues for intersessional work could include reflecting further on the mandate and composition of a science and technical body and to further develop the scope of NAPs, as well as suitable monitoring and financing mechanisms. A lot of stakeholders as well as States have expressed a sense of urgency as there are only fifteen days of negotiations mandated by UNEA Resolution 5/14 for INC 3 to INC 5. This is a very limited time frame to work through the diverse views expressed during INC 1 and INC 2. Beyond INC 3, the Parties will also convene in Ottawa, Canada in April 2024 (INC 4), the Republic of Korea in October/November 2024 (INC 5) as well as the Diplomatic Conference of Plenipotentiaries in mid-2025 in Ecuador, Rwanda or Senegal.54
The author would like to acknowledge the generous funding by The Nippon Foundation of the World Maritime University (WMU) – Sasakawa Global Ocean Institute as well as for The Nippon Foundation and WMU-Sasakawa Global Ocean Institute’s ‘Closing the Circle Programme: Marine Debris, Sargassum and Marine Spatial Planning’ in the Eastern Caribbean.
United Nations Environment Programme (UNEP), Note by the Chair of the Intergovernmental Negotiating Committee, Scenario Note for the Second Session of the Intergovernmental Negotiating Committee to Develop an International Legally Binding Instrument on Plastic Pollution, Including in the Marine Environment, UN Doc UNEP/PP/INC.2/2 (12 April 2023) para II.4.
Ibid.
United Nations Environment Assembly of UNEP, Draft resolution. End Plastic Pollution: Towards an International Legally Binding Instrument, UN Doc UNEP/EA.5/L.23/Rev.1 (2 March 2022) [UNEA Plastic Resolution].
UNEP, Approach for the Multi-Stakeholder to End Plastic Pollution, UN Doc UNEP/PP/ INC.1/INF/11 (16 November 2022).
UNEP, Report of the Intergovernmental Negotiating Committee to Develop an International Legally Binding Instrument on Plastic Pollution, Including in the Marine Environment, on the Work of Its First Session, UN Doc UNEP/PP/INC.1/14 (2 March 2022).
Ibid., s IV.A.
Ibid., Annex I.
J Peel, ‘Re-evaluating the principle of common but differentiated responsibilities in transnational climate change law’ (2016) 5(2) Transnational Environmental Law 245–254.
UNEP (2 March 2022) (n 6), at p. 12.
Ibid.
Ibid., at p. 13.
UNEP (12 April 2023) (n 2).
UNEP (2 March 2022) (n 6), at p. 2.
UNEP, Draft Rules of Procedure for the Work of the Intergovernmental Negotiating Committee to Develop an International Legally Binding Instrument on Plastic Pollution, Including in the Marine Environment, UN Doc UNEP/PP/INC.2/3 (30 May 2022).
UNEP, ‘Discussions in Open Ended Consultations on Rules 37 and 38 (1) Non-Paper’ (30 May 2023) available at https://wedocs.unep.org/bitstream/handle/20.500.11822/42579/Rule38%281%29consultations.pdf; all websites accessed on 3 October 2023 unless otherwise indicated. ‘The INC understands that, based on discussions on the INC draft rules of procedure, there are differing views amongst INC members on rule 38.1 and its reflection in the report of INC 1. Therefore, the provisional application of rule 38.1 of the draft rules of procedure has been a subject of debate. In the event that rule 38.1 is invoked, before the rules are formally adopted, members will recall this lack of agreement’.
By way of example, the UN Framework Convention on Climate Change (UNFCCC) operates in the absence of formally agreed rules of procedure, however, there is an understanding that decisions are adopted by consensus UNFCCC, Organizational Matters: Adoption of the Rules of Procedure, Rule 22. Note by the Secretariat at the Conference of the Parties, Second Session, UN Doc FCCC/CP/1996/2 (22 May 1996). See also K Rietig, C Peringer, S They and J Censoro, ‘Unanimity or standing aside? Reinterpreting consensus in United Nations Framework Convention on Climate Change negotiations’ (2023) International Agreements: Politics, Law and Economics 221–234.
Rietig et al., ibid.
A Stevenson (ed), ‘Unanimity’ in Oxford English Dictionary (Oxford University Press, Oxford, 2015) available at https://www.oed.com/view/Entry/212950.
Rietig et al. (n 17).
M Friman, ‘Consensus in negotiating historical responsibility for climate change’ (2016) 16 International Agreements: Politics, Law and Economics 285–305.
N Chan, ‘Beyond delegation size: Developing country negotiating capacity and NGO “support” in international climate negotiations’ (2021) 21 International Environmental Agreements: Politics, Law and Economics 201–217.
Rietig et al. (n 17), at p. 225.
Ibid., at p. 226.
UNEP, Potential Options for Elements Towards an International Legally Binding Instrument, Based on a Comprehensive Approach that Addresses the Full Life Cycle of Plastics as Called for by United Nations Environment Assembly Resolution 5/14, UN Doc UNEP/PP/INC.2/4 (13 April 2022).
UNEP, Report of the Intergovernmental Negotiating Committee to Develop an International Legally Binding Instrument on Plastic Pollution, Including in the Marine Environment, on the Work of its Second Session, UN Doc UNEP/PP/INC.2/5 (6 July 2022).
UNEP, ‘INC 2 Co-facilitators report on discussions in Contact Group 1’ (2022) available at https://wedocs.unep.org/bitstream/handle/20.500.11822/42621/CG1.pdf.
Ibid., at p. 1.
Ibid., at p. 2. These are also the full life-cycle of plastics, circular economy, the application of precautionary principle, by way of example.
Ibid., at p. 3.
Ibid., at pp. 2–4.
Ibid., at p. 4.
Ibid., at p. 5.
Ibid., at p. 6.
Ibid., at p. 7.
Ibid.
UN General Assembly, Res 76/300 (28 July 2022), The Human Right to a Clean, Healthy and Sustainable Environment, UN Doc A/RES/76/300.
UNEP (2022) (n 27).
See only for the National Biodiversity Strategies and Action Plan Forum to support the implementation of the Kunming-Montreal Global Biodiversity Framework under the UN Convention on Biological Diversity, available at https://www.learningfornature.org/en/nbsap-forum/.
UNEP (13 April 2022) (n 25), at p. 1.
Ibid., at p. 2.
Ibid., at p. 3.
UN Assembly of UNEP, UNEA Resolution 5/8 Science-Policy Panel to Contribute Further to the Sound Management of Chemicals and Waste and to Prevent Pollution (2 March 2022); see also UNEP INC 2 Option Paper (n 18).
UNEP (2022) (n 27), at p. 3.
Ibid.
Ibid., at p. 4.
Ibid.
Ibid., at p. 5.
Ibid.
Ibid.
UNEP (6 July 2022) (n 26), s C 97(a).
United Nations Convention on the Law of the Sea (Montego Bay, 10 December 1982, in force 16 November 1994) 1833 UNTS 396.
UNEP INC Secretariat, Zero Draft Text of the International Legally Binding Instrument on Plastic Pollution, Including in the Marine Environment, UN Doc UNEP/PP/INC.3.4 (4 September 2023).
Ibid., s D, para 66.
