The next round of international negotiations of a new treaty on plastics is scheduled in November (International Negotiating Committee (INC-3)), also to deal with plastic pollution in the marine environment. A zero draft of the treaty has been produced by the Chair of the negotiations, with assistance from the UN Environment Programme (UNEP) Secretariat. This blog post  discusses the content of the zero draft and its human rights dimensions, in particular with respect to the human right to science. This blog post builds on our earlier contributions on the human right to health and the human right to a healthy environment.

What is in the Zero Draft?

The zero draft of the instrument which has been developed to ‘facilitate and support the intergovernmental negotiating committee’s work’ is intended to reflect the, ‘views expressed at the committee’s first and second sessions.’ It is expected to act as an aid to the committee’s work in drafting the instrument, and includes a range of options, while also attempting to ensure coherence, logic and readability in the overall text.

There are two options for the objective of the instrument: to “end plastic pollution, including in the marine environment” or “to protect human health and the environment from plastic pollution, including in the marine environment.” The latter option includes the possibility to add “progressive reduction and elimination of plastic pollution” or “managing the utilization of plastics and plastic waste”.

The range of options set out in the zero draft includes the ‘upstream’ aspects of plastics production. This is a key consideration related to the environmental justice and human rights dimension of these negotiations: plastic production is linked to fossil fuel extraction, and therefore could contribute to the ocean-climate nexus. One option presented in the zero draft is a cap on the production – and supply – of primary plastics polymers while another option would see a global target to reduce plastics production, with country level ‘nationally determined contributions’ to contribute to achievement of the global target. The latter option very much echoes the approach taken in the Paris Agreement on climate change, which relies on nationally determined contributions to collectively achieve its central goal to limit ‘the increase in the global temperature to well below 2°C above pre-industrial levels’ while at the same time taking efforts, ‘to limit the temperature increase to 1.5°C above pre-industrial levels.’ A further option set out in the zero draft would see Parties commit to taking measures necessary to manage and reduce global supply and production of primary plastic polymers accompanied by national plans detailing the intended level of domestic supply and production.

The zero draft also sets out a range of options to target particular chemicals and polymers of concern, including where such concern relates to the, ‘potential for adverse impacts on human health or the environment at any stage of the plastic life cycle.’ These are critical aspects to ensure the protection of the human right to health and the right to a healthy environment.

There are further options aimed at the upstream component of plastics production including ‘problematic and avoidable plastic products’ such as single-use products, as well intentionally added microplastics. Emissions from the plastics lifecycle are also considered under the zero draft. Provision is also made for the promotion of alternative plastics, as well as non-plastics substitutes.

A range of options are also set out in the zero draft related to product design, composition and performance, including consideration of a product’s durability, reusability and safety. Here, the focus is again on the lifecyle of plastics, with further options set out regarding a minimum percentage target for the use of post-consumer recycled plastics and options for Extended Producer Responsibility, to incentivise recycling and reuse. Here it is essential to recall the scathing critique by the UN Special Rapporteur on Toxics about the very limited capacity currently available globally to recycle plastics and the dangers to human health and the environment of reuse.

Provision is also made for waste management, trade, and the transboundary movement of plastics waste, with language adapted from existing Conventions (Rotterdam, Stockholm and Basel) in the zero draft. In this connection, it is useful to recall that recently the human right to a healthy environment has been recognised in the context of chemicals management (2023 Global  Framework on Chemicals). A specific provision is focused on international cooperation on discarded fishing gear containing plastics.

In terms of existing pollution, including in the marine environment, the zero draft makes provision for parties to cooperate to identify problematic areas (“accumulation zones, hotspots and sectors”, where “quantities and types of litter pose a threat to species and habitats, taking into account the full life cycle of plastics”), as well as to take effective remediation and mitigation measures. Here it is essential to keep in mind the great disparity in capacities to research and manage the marine environment between the Global North and the Global South, which results in knowledge and power asymmetries in international cooperation. In addition, the novel provisions of the BBNJ Agreement on international cooperation, notably with regard to Strategic Environmental Assessments and their potential for fostering more equitable research partnerships in the high seas and deep-seabed, including at the ocean-climate nexus, are relevant considerations.

Under the moniker of ‘just transition,’ the zero draft notes that need to, ‘promote and facilitate a fair, equitable and inclusive transition for affected populations, with special consideration for women and vulnerable groups, including children and youth, in the implementation of’ the instrument.’ From a human rights perspective, the increasing documentation of negative human rights and environmental impacts of just transition policies, including in the context of blue economies, and in particular growing concerns about business responsibility to respect human rights in the context of just transitions should be carefully taken into account.

Provision is also made for financing, national plans and institutional arrangements. While these are “traditional” clauses in international environmental treaties, issues around transparency, participation and fair consideration of different knowledge systems and views of different human rights holders would need careful consideration, particularly with a view to contributing to the transformative change called for by the Intergovernmental Panel on Climate Change and the Intergovernmental Science-Policy Platform on Biodiversity and Ecosystem Services.

The human rights dimensions of the negotiations

In a previous policy brief and article, we focused on the health impacts of plastics, and in particular, the need for collective actions to realise the right to health within the context of the ongoing negotiations for an international instrument. We noted that realising the right to health will also require comprehensive and disaggregated research into the health impacts of plastics, which is a logical prerequisite to enable states to fulfil their well-established obligations to respect, protect and fulfil all human rights, including the right to health (General Comment No. 14, para 33). Both the depth of global knowledge on plastic-health interactions and the rate at which such research is being conducted continues to ramp up, there are admittedly still knowledge gaps. However, these should not be used as an excuse for inaction. The precautionary principle prescribes that where there is a threat of serious or irreversible harm, lack of scientific certainty shall not be used as a reason for postponing appropriate responsive measures (Rio Declaration, Principle 15). To the extent possible and in line with the planning obligation considered above, States should also cooperate internationally, regionally, and nationally to harmonise, prioritise and focus research agendas for maximum impact, and to minimise duplication of effort.

However, a further point needs to be emphasised. In respect of the convening of research agendas, particular effort should be put into avoiding the perpetuation of existing inequalities, including Global North/South inequalities which are prevalent in this domain. In accordance with the right to science, and to ensure equity in both identification of the plastics ‘problem’ as well as in respect of the solution, research on plastics must also involve collaboration and cooperation so as to avoid “deep international disparities among countries in science and technology” (see General Comment No 25 (2020 para 79) and to mitigate the risk of research prioritising the concerns of the Global North. In particular, the Hub has already advocated, also under the BBNJ Agreement and the WHO pandemic instrument negotiations, for the need to shift from assumptions about technology transfer from the Global North to the Global South, towards “technology co-development” that supports the agency of Global South countries in co-identifying research priorities and modalities.

In addition, there is a need to ensure a genuine space for mutual learning from a range of voices, including those of Indigenous knowledge holders, small-scale fishers, women and children, within our understanding of ‘science.’ Assessments of what is, or is not, a polymer of concern, for example, which may ultimately require consideration of ‘adverse impacts on human health or the environment at any stage of the plastic life cycle’ (zero draft, part 2, option 2), are not neutral scientific assessments.

International legal processes – including funding processes – have increasingly recognised the need to promote more diverse forms of knowledge, and the negotiations for the instrument could learn from such experiences. Within the Green Climate Fund, for example, at a recent meeting of      the Indigenous People Advisory Group, a recommendation was made regarding ‘the inclusion of indigenous peoples experts in any advisory group and any engagement with holders of the best available knowledge’ and that ‘regular and periodic updates in the progress of further clarifying the role of data and information from traditional, local and indigenous knowledge and practices in the assessment of concept notes, project preparation funding applications and funding proposals.’

As we noted in our earlier policy brief, information on the human rights implications of the plastics life cycle is also vital to the exercise of a myriad of human rights and should be available to all, regardless of nationality or domicile (UNGA, paras 80 to 83). Without adequate information, rights holders simply cannot ensure the ability to exercise their rights as, for example, access to remedy is difficult (if not impossible) in the absence of information (UNGA, para 80). Accordingly, information is vital to ensure meaningful participation within the development of initiatives on plastics, including of course the international legally binding instrument on plastics pollution. 

Outlook

Hub researchers from the legal, marine and social sciences are working on a new paper to synthesize our recommendations for the plastics treaty negotiators, based on the ocean-climate nexus and the human rights-based approach. We look forward to working with other partners to contribute to the negotiations, including as part of our engagements with the UN Decade for Ocean Science and One Health.

Illustration: Elisa Morgera