Next week, states will convene in Busan, South Korea, for the fifth – and in theory final – session of the Intergovernmental Negotiating Committee (INC) to develop an international legally binding instrument on plastic pollution. The INC was established by the United Nations Environment Assembly (UNEA) in March 2022 and has been meeting for the last two years, hopscotching around the world from Punta del Esta, Uruguay, to Paris to Nairobi to Ottawa, and now to Busan. The meeting next week is supposed to finalize the treaty text, for adoption at a diplomatic conference in spring 2025.
With the world’s eyes trained on the climate crisis, the plastics negotiations have largely flown under the radar. In contrast to climate change, which regularly gets ministerial if not head-of-state consideration, the plastics agreement is being negotiated by mid-level officials and garners only modest media attention.
But the comparative lack of attention to the plastics negotiations belies the importance of the issue. More than 400 million tons of plastics are produced each year, and this number is projected to triple over the next 40 years. An estimated 50 billion plastic water bottles are sold each year in the United States alone. Only about 9% of plastic waste is recycled, while 22 % is mismanaged, with 11 million metric tons entering the ocean in 2016. And the micro- and nano-plastics created through the breakdown of macro-plastics are now ubiquitous in the environment, the food and water supply, and the human body.
The Path to Busan
Plastic pollution emerged as an international issue only relatively recently, within the last decade. In 2014, UNEA requested the UN Environment Programme secretariat to do a study of marine plastic litter. Three years later, it created an Ad-Hoc Expert Group (AHEG) on Marine Litter and Microplastics. The AHEG concluded its work in 2020, a ministerial conference was held on marine litter and plastic pollution the following year, and in 2022 UNEA adopted Resolution 5/14, which established the INC. According to Resolution 5/14, the INC is to develop an international legally binding instrument that takes “a comprehensive approach that addresses the full life cycle of plastic,” including provisions that “promote the sustainable production and consumption of plastics.”
With the scheduled negotiations four-fifths completed, and only a week of negotiations remaining before the INC is to conclude its work, very little progress has been made. INC.1, held in Punta del Este in December 2022, was largely organizational, provisionally adopting rules of procedure. INC.2, held in June 2023 at UNESCO headquarters in Paris, was supposed to begin substantive negotiations, based on an “elements” paper prepared by the Secretariat, which identified potential options for the agreement’s objective, obligations, implementation measures, and so forth. But almost half of the session was consumed with a procedural attempt to reopen the rules of procedure by Saudi Arabia, Iran, China, Russia, and Brazil, among others, who had buyer’s remorse over a rule allowing the INC to make decisions by a 2/3 majority vote if efforts to reach consensus prove unsuccessful. Unable to resolve the issue, INC.2 broke the stalemate by adopting an interpretive statement that simply acknowledged the differing views (INC.2 report, para. 61).
Notwithstanding this procedural dustup, INC.2 was able to agree to authorize the INC Chair to prepare a “zero draft” during the intersessional period, which provided a glimmer of hope that real negotiations would begin at INC.3 in Nairobi in November 2023. But that hope did not survive the opening days of the Nairobi session, when a newly-formed “like-minded group” of countries (led by fossil fuel and plastic producing states such as Iran, Saudi Arabia, China, and Russia) objected to the Chair’s zero draft on the ground that it did not adequately reflect their views, including their opposition to the inclusion in the agreement of elements addressing upstream issues such as plastic production, which would impinge on fossil fuel demand. They favor a relatively modest, bottom-up agreement, focused on the development of national plans, rather than a highly regulatory agreement that prescribes international requirements for each stage in the lifecycle of plastics – the approach favored by the High Ambition Coalition to End Plastic Pollution (the HAC), a group of 67 countries that includes small island states, a number of African and South American countries, and most OECD members other than the United States (which has supported a “start and strengthen” approach and positioned itself somewhere in between the HAC and the Like-Minded Group).
At INC.3, the Like-Minded Group, rather than acquiesce to negotiate based on a text that they felt unbalanced, insisted that their positions be inserted into the zero draft – for example, by including the option, “no text,” for many of the articles. This exercise occupied the rest of the session and resulted in a document more than twice as long as the original zero draft, with upwards of 1500 brackets. Although INC.4 finally began working through this “revised draft text,” the Like-Minded Group and HAC made negligible progress in narrowing their differences, much less resolving issues, and continued to disagree about even such basic questions as what constitutes “plastic pollution.” The result is a “compilation text” that now runs to 73 pages, with 3474 opening brackets (roughly double the number in the revised draft text) and 3263 closing brackets (raising philosophical questions for “bracketologists” about the status of text with an opening bracket but no closing bracket).
In recognition that the compilation text does not provide a workable basis for negotiations in Busan, the INC Chair, Ambassador Luis Vayas Valdivieso of Ecuador, in late October put forward a slimmed-down, 18-page, “non-paper,” outlining what he sees as possible landing zones for an agreement. On issues where he believes some convergence of views exists, his non-paper proposes actual text; on other issues, the Chair describes possible approaches in more general terms or suggests establishing a process to address the issue in the future.
The Chair’s non-paper represents a considerable improvement over the compilation text in terms of negotiability, but whether states will agree to use it in Busan is an open question, which could itself take up considerable time next week. Those Like-Minded countries that wish to drag out the negotiations and prevent an outcome may insist on using the compilation text, on the ground that the INC is a state-driven process and that the compilation text, not the Chair’s non-paper, reflects the work of the INC to date. Meanwhile, states in the High Ambition Coalition, who want an ambitious agreement that sets caps on plastic production and regulates the chemicals used in plastics, may feel that the Chair’s text is too weak.
Wrong Turns?
Why have the plastics negotiations proved so difficult? To those familiar with the climate change regime, the glacial pace of the plastics negotiations is not surprising, nor is the use of procedural objections as a means of delaying substantive discussions. Many of the factors at work are similar: the enormous economic stakes involved, the widely divergent interests of states, and the role of the fossil fuel and chemicals industries in resisting anything that would reduce their profitability.
But each negotiation is unique. Several wrong turns have, I think, played a particular role in the plastics negotiations:
An unclear and overly broad mandate. To begin with, even at this late date, states still do not agree on what they are negotiating. When plastic pollution came onto the international agenda in the early 2010s, the focus was on marine plastic litter – a conceptually narrower issue, though widespread in impact. In 2012, the UN Conference on Sustainable Development (Rio+20) launched the Global Partnership on Marine Litter and, up until 2022, the UNEA resolutions on plastics all focused on “marine plastic debris and microplastics.” It therefore came as a surprise to many observers when UNEA-5 adopted a negotiating mandate that encompasses the entire life cycle of plastic, not simply marine plastic litter. (How this result came about is a story for another day.)
As the INC process has shown, the victory of high-ambition states at UNEA-5 in dramatically broadening the scope of the negotiations was only partial. The Like-Minded Group, as well as fellow travelers such as India, continue to prefer a narrower approach and oppose the inclusion of provisions addressing plastic production or the chemicals used in making plastics. The conflict plays out in the debate over the meaning of “plastic pollution.” Does “plastic pollution” simply mean pollution consisting of plastics, as the Like-Minded Group insists? Or does it encompass pollution of any kind resulting from the life cycle of plastics, including the greenhouse gases and chemicals emitted in the plastic production process (the view of the HAC)? Put another way, should the treaty address only the release of harmful plastics into the environment (a scope already far broader than marine litter), or should it seek to limit plastics generally, with the ultimate goal of “turning off the tap” of plastic production?
It is difficult enough to negotiate an agreement when states agree on what they are negotiating. But when they do not even agree on what issues to discuss, the process becomes almost impossible. In this respect, the negotiation of the agreement on biological diversity beyond national jurisdiction (BBNJ) provides a useful contrast. Well before the BBNJ negotiations formally began, states agreed – in what has been called a “watershed moment” – to a package of four issues to address going forward (marine genetic resources, area-based management tools, environmental impact assessment, and capacity building/technology transfer). The subsequent negotiations still proved difficult and took roughly a dozen years to complete; but at least states agreed on what they were negotiating. By contrast, despite the UNEA-5 negotiating mandate, the INC still has not agreed to the package of issues it should address.
Inadequate time. In addition, in Resolution 5.14, UNEA set an overly ambitious goal of completing what promised to be an exceptionally difficult negotiation in two years, a problem compounded by the later decision by the INC’s preparatory group to allocate only five weeks total for the negotiations (one week for each of the five INC sessions). By comparison:
• The intergovernmental negotiating committee tasked with developing the UN Framework Convention on Climate Change had almost twice as much time for its deliberations – and it was negotiating only a framework convention, not a complex regulatory instrument.
• It took four years to negotiate the Paris Agreement, even though states had already agreed to its basic approach in the 2009 Copenhagen Accord and the 2010 Cancun Agreements.
• In the case of the BBNJ Agreement, even after the package of four issues had been agreed in 2011, it still took four years to reach agreement to establish a preparatory committee, another two years to establish an intergovernmental conference to negotiate a BBNJ agreement, and another six years to hammer out the text. And the BBNJ negotiations concerned issues that were far less complex, with much smaller economic stakes, than the plastics negotiations.
Inappropriate models. Given the inadequate time the INC was given to complete its work, the INC did not give sufficient thought, at the outset, to the different ways a plastics agreement could be structured and which existing multilateral environmental agreements provided the most appropriate models. Failure to consider these questions carefully can easily lead negotiators down the wrong path. In the early 1990s, climate negotiators looked to the ozone regime for inspiration and modeled the Kyoto Protocol on the Montreal Protocol, a decision that led the climate regime into a decade-long cul-de-sac from which it only escaped by switching from the legally binding, internationally-negotiated, target-based model of the Montreal and Kyoto Protocols, to the bottom-up, pledge-based approach of the Paris Agreement. Perhaps because many of the INC’s participants had a chemicals background, the INC, from the start, looked to chemicals agreements like the Stockholm Convention on Persistent Organic Pollutants and the Minamata Mercury Convention as models. Although the INC Secretariat prepared an information paper for INC.1 identifying a variety of options for structuring a plastics agreement, including a framework convention approach, its elements paper issued prior to INC.2 tilted in favor of the comprehensive regulatory approach of Stockholm and Minamata, by including potential obligations for each stage in the life cycle of plastics, from primary production to legacy wastes. Given the path dependency of international negotiations, the elements paper’s structure has dominated the INC process ever since.
Moreover, even in its initial paper on structural options, the Secretariat failed to identify one potential treaty model that might have provided a bridge between states that want a highly regulatory agreement that addresses plastics comprehensively and those that prefer a more limited approach: the International Convention for the Prevention of Pollution from Ships, popularly known as MARPOL 73/78. In effect, MARPOL 73/78 combines the framework and regulatory approaches to treaty design. It contains a core agreement that is much like a framework convention. But rather than stopping there, as the framework convention approach does, and leaving the negotiation of regulatory provisions to later protocols, MARPOL 73/78 included five annexes that were negotiated concurrently with the core agreement and are the functional equivalent of protocols. In essence, they are mini-agreements, with detailed regulatory provisions, rather than technical lists of substances or criteria like the annexes to many multilateral environmental agreements. One of the five annexes – on oil pollution – was mandatory, giving the regime substantial regulatory content from the start, while the other four annexes – addressing other types of pollution from ships, such as sewage and garbage – were optional, allowing countries to join the agreement without necessarily subscribing to all of its regulatory content.
A MARPOL structure might satisfy members of the High Ambition Coalition, by going beyond the framework convention approach. It might include, for example, a mandatory annex on marine plastic litter – the original focus of international attention and the issue on which agreement may be easiest – as well as detailed regulatory annexes on plastic production, polymers and chemicals of concern, and extended producer responsibility. But a MARPOL approach might also be acceptable to members of the Like-Minded Group, if these additional annexes were made optional, like four of the five MARPOL annexes. Of course, a MARPOL structure might not unblock the negotiations. But unless the option is considered, we will never know.
All three of the problems discussed above have a common source: the haste with which the negotiations got off the ground, with no agreement on the package of issues to address and little serious discussion of whether the existing chemicals agreements provide the appropriate model for a plastics agreement. Persistent organic pollutants and mercury pollution are relatively confined problems. By contrast, plastics are deeply embedded in the global economy, have huge economic stakes (topping $1 trillion in trade), and raise a host of complex and heterogenous issues ranging from chemical hazards to product design to waste cleanup.
The Way Forward
Where do the negotiations go from here? Of course, it is possible that states will see the light in Busan, agree to use the Chair’s non-paper as the basis of discussions, resolve their differences, and adopt a text. But this scenario seems unlikely. That leaves three options:
First, the negotiations could grind on. If states do not want to go back to UNEA to request authorization for additional negotiating sessions, the chair could simply adjourn INC.5, thereby allowing the INC to reconvene for INC.5-2 next year and possibly for additional INC.5-x’s into the future, until states eventually wear out and come to agreement.
Second, states that support an ambitious agreement could table a treaty text and call for a vote on its adoption. As noted earlier, the provisional rules of procedure allow decisions to be made by a two-thirds majority vote, if consensus proves impossible. Calling for a vote would almost certainly cause China, India, and Saudi Arabia, among others, to walk away from the negotiations. However, some states may prefer a strong agreement with limited participation to a weak agreement that all states could accept. If so, they may prefer to force the issue by seeking a vote, rather than allowing the negotiations to drag on.
Finally, states that support an ambitious agreement could go outside the INC and seek to adopt it at an independent diplomatic conference. This was the approach taken by NGOs with respect to anti-personnel landmines. Frustrated by the slow pace of negotiations on landmines under the UN Convention on Certain Conventional Weapons, NGOs worked with Canada to organize a diplomatic conference in Ottawa at which they, in essence, presented states with a take-it-or-leave-it text. Although the only states that accepted the 1997 Ottawa Agreement were those that did not actually use anti-personnel landmines and therefore did not need to change their behavior, the treaty arguably has helped to de-legitimize anti-personnel landmines, contributed to a halt in their production, and influenced states with anti-personnel landmines to reduce their stockpiles.
Calling for a vote at INC.5 or convening an Ottawa-style diplomatic conference represent different versions of the “nuclear option.” Both would involve abandoning the effort to achieve global consensus and proceeding instead with a coalition of the willing. Eventually, high-ambition states may become so frustrated with the INC process that they are willing to contemplate going their own way, but I doubt that they are willing to do so yet. Such a move would entail huge diplomatic costs and yield limited benefits, since a rump plastics agreement that did not include major players such as China, India, Saudi Arabia, and the United States would address only a fraction of the problem. So Busan will likely not be the end of the road for the INC. The traveling plastics-negotiation roadshow seems destined to continue.
The author has been attending the INC sessions as an observer for the United Nations Foundation and would like to thank Daniel Stewart and Maria Ivanova for their very helpful comments.
Photo credit: Dying Regime
