Reflections on the new UN process to develop a treaty on plastics

By Stephanie Switzer and Elisa Morgera

On the final day of UNEA-5.2, hands are raised in celebration on the dais, as the resolution to “End Plastic Pollution: Towards an International Legally Binding Instrument” is adopted. Photo: Earth Negotiations Bulletin/ International Institute for Sustainable Development

The monumental decision to begin negotiations on a legally binding international instrument on plastic pollution was taken in early March 2022, at the second part of the 5th United Nations Environment Assembly (UNEA 5.2). This blog post provides some initial reflections on the need for a new international treaty, the mandate agreed upon at UNEA and its relevance for a healthy ocean, equity and human rights.

The context

As the UN Special Rapporteur on Toxics and Human Rights underscored in 2021, “the whole cycle of plastics, at its various stages [extraction of raw materials, which for over 99% of all plastics is produced from fossil fuels, production, transport, use, waste – has become a global threat to human rights.” And there is increasing evidence that plastic pollution disproportionately affects marginalized communities. For instance, there is a prevalence of open burning of plastics in many countries in the Global South, including by coastal communities trying to address plastic pollution on beaches, with impacts to air quality and human and ecosystem health.

Ocean plastics, specifically, are by far the biggest component of global marine litter/debris and pose a threat to biodiversity. Up to 80% of marine debris is plastic, and it has been estimated that plastic makes up as much as 95% of total marine litter. Without meaningful action, emissions of plastic waste into aquatic ecosystems are projected to nearly triple by 2040. Studies suggest that 80% of marine plastic litter comes from land-based sources, estimating that between 8-12MT of plastic waste enters the marine environment each year. The remaining 20% of marine litter is ocean-based and comes from ocean fisheries, nautical activities and aquaculture.

Plastics are not just found in coastal regions, but also in the deep sea, including seamounts in the South-West Indian and South Atlantic Ocean. Different types of plastic (acrylic, polyester, polyamide, etc.)  have also been found to be ingested by many fauna, including those in the deep sea. This unfortunately is not a new phenomenon, with fauna collected in the mid-1970s already clearly having plastics within their stomachs. Greater research is needed regarding the effects of the ingestion of plastics on vulnerable deep-sea species such as deep-sea corals and the impact this may have on them and the functioning of the ecosystem. While we fill these knowledge gaps, the One Ocean Hub is working with UNEP to better understand the human rights implications of ocean plastic pollution, including for children.

The concerns around marine plastics stem from their persistence, accumulation, and toxicity in the environment, as well as their long-term effects on ocean health, ecosystems, marine biodiversity and humans. Microplastics and nanoplastics with associated chemical substances or additives may cause changes in gene and protein expression, produce inflammation, disrupt feeding behaviour, decrease growth, change brain development, reduce filtration and respiration rates, and alter the reproductive success and survival of fish and other marine organisms.  The UN Special Rapporteur on Toxics concluded that

  • “There is currently no commercially available waste management method capable of solving the global plastic pollution crisis. Toxics additives and micro-plastics contained in…oceans…cannot be eliminated by recycling, landfilling or incineration.” 
  • “Only about 9% of all plastic waste ever produced has been recycled” 
  • “Existing plastic practices pose health threats from volatile organic compounds and they concentrate toxic additives in plastics, generative new hazardous products”
  • “Only legally binding limits on global plastic production for essential uses can make a difference”.

Why an international treaty?

Simply put, the impacts of plastics pollution are not confined to one jurisdiction. They are transboundary in nature and cannot be resolved by any one country. As noted by the UN Special Rapporteur on Toxics, ‘Plastic wastes and chemical additives cross borders, and plastics supply chains involve the global economy.’ While numerous domestic and regional initiatives have attempted to tackle certain aspects of the plastics problem – such as, for example, through the introduction of bans on single use plastics – only a limited number of international interventions have been made. According to an analysis conducted by researchers at Duke University, of the ‘28 international policies agreed since the beginning of 2000, none include a global, binding, specific, and measurable target to reduce land-based sources of plastic pollution, limiting the extent of plastic pollution reduction that they can achieve.’ This is problematic because, despite industry attempts to frame the debate otherwise, the plastics problem cannot be tackled solely by recycling. Without other efforts to limit land-based sources of plastics pollution, we are destined to lose the battle on plastics. In the words of the UN Special Rapporteur on Toxics, ‘recycling practices implemented to date are …an optical illusion that perpetuates the severe human rights impacts of plastics.’  Instead, a life-cycle approach that includes targeting the production of virgin plastics must be taken.

The benefits of a treaty are that it could, ‘anchor, build upon, and complement existing regional and global voluntary and binding frameworks, allowing them to contribute within their core competencies.’ A treaty could also move us beyond what has been termed the ‘linear “take-make-waste” approach’ and instead promote the transition towards a more circular global economy to address both the lifecycle of plastics as well as, ‘focusing upstream to design out waste before it is created.’ As noted by UNEP,

‘a  shift to a circular economy can reduce the volume of plastics entering oceans by over 80 per cent by 2040; reduce virgin plastic production by 55 per cent; save governments US$70 billion by 2040; reduce greenhouse gas emissions by 25 per cent; and create 700,000 additional jobs – mainly in the global south.’

It is therefore unsurprising that there have been consistent calls for an international treaty in this area to include not only binding reduction targets in respect of plastics pollution, but also mechanisms for monitoring and enforcement.

In addition, an international treaty could address the Global North/South equity issues around plastic pollution. The amount of plastic waste generated by many Global South countries is often relatively low. However, many of these same countries are unable to adequately manage their waste let alone plastic waste shipped or originating from Global North countries. Ocean plastics is, in effect, one of the several environmental justice issues that affect the ocean and require further attention. The environmental and societal impacts of ocean plastics are felt more in the Global South countries that depend heavily on the ocean as a food source (Hicks et al., 2019; Selig et al., 2019), as significant declines in productivity or health of marine species could trigger food security issues due to a lack of viable alternatives.

What will the proposed treaty do?

It is clear from the text of the UNEA 5.2 Resolution that the proposed treaty will aim to address the, ‘‘full life cycle of plastic, including its production, design and disposal.’ It is likely to promote the sustainable consumption and design of plastics as well as pursue measures to reduce plastics pollution, including existing pollution such as ocean plastic. The need to foster capacity building, technology transfer and technical assistance is also mentioned, as is the need to build research in this area. In full, the clear intent of the Resolution is to promote, ‘diverse alternatives to address the full lifecycle of plastics, the design of reusable and recyclable products and materials, and the need for enhanced international collaboration to facilitate access to technology, capacity building and scientific and technical cooperation.’.’

The treaty is expected to deal with existing plastics pollution. In this regard, remediation of existing plastics pollution is mentioned in the resolution which notes the need, ‘to promote national and international cooperative measures to reduce plastic pollution in the marine environment, including existing plastic pollution.’ How this will play out in practice is unclear. Certain commentators have, for example, called for the establishment of a Plastics Fund, potentially modelled on the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, that could be used to finance the clean-up of plastics, particularly from the world’s oceans and rivers. Here, engagement with the private sector would arguably be required, together with state contributions to such a fund based on the principle of common but differentiated responsibilities. Clearly, the UNEA Resolution falls short of proposing such a compensatory fund, although the international negotiating committee is asked to consider, as part of its deliberations on the instrument, ‘the need for a financial mechanism to support the implementation of the instrument, including the option of a dedicated multilateral fund.’

What else does the UNEA 5.2 Resolution on plastics say?

The UNEA 5.2 Resolution directs that an Intergovernmental Negotiating Committee (INC) be established to take forward discussions on the proposed Treaty., The INC is tasked in its deliberations to consider the, ‘possibility of a mechanism to provide policy relevant scientific and socio-economic information and assessment related to plastic pollution.’ Numerous science-policy mechanisms exist to support international legal processes with perhaps the most well-known of these being the Intergovernmental Panel on Climate Change (IPCC) which exists to ‘input into international climate change negotiations’ as well as ‘provide governments at all levels with scientific information that they can use to develop climate policies.’

Calls for a science-policy mechanism in the plastics domain long predate UNEA 5.2 with, for example, the Nordic Council having previously proposed a ‘global scientific mechanism or body that operates as science-policy interface on marine litter and microplastics in order to strengthen the global scientific knowledge base about the entire life cycle of plastics.’ Such research is vital, not least because, as noted in a recent editorial in Nature, ‘countries have agreed that a plastics treaty must lock sustainability into the ‘full life-cycle’ of polluting materials.’ In practice, ‘this means plastics manufacturing must become a zero-carbon process, as must plastics recycling and waste disposal. These are not straightforward ambitions, which is why research — and access to research — is so important as negotiations get under way.’

More generally, while the science on plastics is improving, there is still a considerable amount of work to be done in this area. Notably, a 2020 study for the Pew Trust found that,

‘Consistent definitions and conventions for plastic waste data and metrics are lacking, and there is insufficient transparency regarding the plastic being placed on the global market (type, chemical additives, etc.), trade flows, waste production, consumption, and post-use patterns… The result is a very data-poor debate, often led by opinions and preconceptions instead of facts.’

In addition, it is essential for this, and indeed other science-policy mechanisms, to include different knowledge systems, including indigenous and local knowledge, which could also contribute to support the meaningful participation of indigenous peoples and local communities in decisions on plastics down the line. Indeed, UNEP has called for the recognition of communities affected by plastic waste and their participation in local decision makingaround responses to marine plastic pollution.

What approach will the treaty take?

Prior to the UNEA 5.2 resolution, numerous commentators had espoused different views on design options for any potential treaty. Treaty design matters in numerous respects; it can impact the agreement’s credibility as well as the probability that the agreement will be complied with. International law is resplendent with a myriad of examples of different approaches to treaty making. Some commentators touted the Montreal Protocol as a potential model for any plastics treaty, while others noted the potential of the UNFCCC Paris Agreement on climate change. Both agreements establish different substantive obligations for contracting parties.

Ratified by every country on Earth, the Montreal Protocol was adopted in 1987 in response to the scientific discovery that certain substances were depleting the ozone layer, which is vital to protect the Earth from the harmful effects of the sun’s radiation. The central goal of the Protocol is to phase down both the production and use of, ‘nearly 100 man-made chemicals referred to as ozone depleting substances (ODS).’ Arguably the most successful multilateral environmental agreement of all time, the ozone layer is expected to recover by the 2050s. In accordance with the international law principle of common by differentiated responsibilities, different obligations apply under the Montreal Protocol in respect of developing and developed countries. In respect of the former (so-called Article 5 countries), a different timetable applies to their phase out of applicable ODS and a Multilateral Fund for the Implementation of the Montreal Protocol., established in 1991, helps finance the phasing out by developing countries of ODS. The appeal of the Montreal Protocol is in its strictness. Applying the Montreal model to plastics, ‘sends a signal to states and to industry that they must change their behaviors and products, while giving time to adapt to the new regulation and develop alternative materials or ways of working.’

In contrast to the Montreal Protocol, the UNFCCC Paris Agreement takes a more flexible approach, allowing countries to determine their own contributions to reducing climate change emissions (so-called nationally determined contributions) to meet the overall goal of the Paris Agreement to keep global temperature rises below 2 degrees, but preferably to 1.5 degrees Celsius, compared to pre-industrial levels. This flexibility, whereby a core goal is agreed but individual countries have flexibility to achieve it, has received attention as one way that a Plastics Treaty could be designed to accommodate the different needs and indeed starting points of different States.

Ultimately, the UNEA 5.2 Resolution appears to encompass the approach of the Paris Agreement in that it ‘sets out basic objectives and allows states to set their own plans for preventing, reducing and eliminating plastic pollution.’ How such a model will play out in practice remains to be seen though researchers working in this area have suggested a Paris-type model could involve a global cap on virgin plastic production, while allowing each country to, ‘take on its own set of unique solutions to reach its (individualised) target.’ This could include, for example, a ban on single-use plastics as well as greater use of plastics deposits schemes. This could be accompanied by a reporting mechanism whereby each Treaty party reports its plastics ‘emissions’, much like the current process under the UNFCCC.

A further aspect of treaty design is the framing of the ‘problem’ that the text is designed to resolve. Frames matter; for example, seeing the problem as one of waste management impacts upon potential fixes. For too long, the plastics problem has been seen as one requiring plastics to be managed, prevented, traded and/or as a good in production and consumption processes. In this vein, ‘the (current) transnational regulation of plastics fails to frame plastics in the language of human rights and justice’ which, as has been established in other work undertaken by Hub Researchers, is of undoubted importance to the regulation of plastics. Notably, and as discussed above, questions of equity both from a Global North/South perspective, and in terms of impacts on particular communities, need to be central in the construction of a new treaty. Attention should be paid to distributional and procedural injustices, as well as restorative justice – avoiding further injustices that could derive from misplacing burdens on those that are not responsible for causing ocean plastics but are negatively impacted by it. In this connection, it is useful to recall that the UN Special Rapporteur on Toxics recommended developing a global liability and compensation mechanism for pollution from plastics, as extended producer responsibility does not address cross-border environmental injustices that may arise when only the importer, and not the exporter, of plastic products that contain hazardous substances is held responsible for post-consumer products[1]

In addition, and as argued above, it is essential that plastic pollution is not solely portrayed as a waste management problem, but as one requiring plastic production reduction, which in itself is linked to fossil fuel production. Hence, there is an opportunity to address the twin environmental and equity challenges of reducing plastic pollution at source and contributing to climate change mitigation.

Next steps

The Executive Director of UNEP is directed to set up a meeting during the first half of 2022 to, ‘convene an ad-hoc open-ended working group to hold one meeting during the first half of 2022 to prepare for the work of the intergovernmental negotiating committee in particular to discuss the timetable and organization of work of the intergovernmental negotiating committee.’ The Executive Director is further tasked to, ‘continue to support and advance the work of the Global Partnership on Marine Litter, while strengthening scientific, technical and technological knowledge with regard to plastic pollution, including in the marine environment, inter alia, on methodologies for monitoring, and sharing available scientific and other relevant data and information.’ The inclusion of different knowledge holders, of communities negatively impacted by plastics, and of researchers advancing understanding of the environmental, human rights and justice concerns arising from ocean plastics is crucial in these fora.

Negotiations on the treaty are due to conclude by 2024. The two-year period in which negotiations are due to conclude is remarkably short in international law terms. Most treaties take significantly longer than this with the Minamata Convention on Mercury, for example, opening for signature in October 2013 and entering into force in 2017. The original decision to adopt a global legally binding instrument on mercury was, however, taken by the UNEP Governing Council in early 2009. Simply put, treaties are time-consuming to negotiate because, regardless of the context, ‘they require governments to give up some of their ability to decide for themselves what they will do, with whom they will work, and how much money they will spend.’ The need for speed is perhaps best explained elsewhere in that, ‘with plastic pollution increasing every day, time is a luxury the planet may not be able to afford.’ In this regard, it is noteworthy that negotiations on a so-called Pandemic Treaty, intended to respond to another pressing issue of our time, are being conducted under the auspices of the World Health Organisation and are subject to a similarly condensed time frame.

Even assuming negotiations on the Plastics Treaty conclude by 2024, it will not take effect until signed and ratified by a sufficient number of States. Ratification is an international law term which essentially means that States have taken, ‘steps pursuant to their national constitutions and laws to bind themselves to an international agreement.’ Furthermore, States only become bound by a treaty if they consent for this to happen. With limited exceptions, international law operates like a contract; a State does not take on new contractual obligations unless it explicitly agrees. Reservations are also possible to treaty. In practice, this means that a State takes on obligations under a Treaty but may opt out of particular provisions. It is therefore important to underscore that the effectiveness of a Treaty depends on a large number of factors, from Treaty design to the speed with which it is ratified and indeed, by how many parties.

Final Thoughts

As we start planning the formal negotiating process, it is essential to embed human rights standards and considerations at the outset. As recommended by the UN Special Rapporteur on Toxics, this requires:

  • integrating a human rights-based approach in the negotiations of a new global treaty (including human rights principles such as prevention, precaution and polluter-pays, mechanisms for accountability and access to remedy);
  • ensuring public participation in the negotiations of proposed international instruments on the topic (based on the good practice of the negotiations of the Escazu Agreement).

More generally, it is striking how many of today’s global problems are marked by profound inequity. The global response to Covid-19, for example, has been marked by vaccine nationalism and the hoarding of vaccines by the Global North. Similarly, the ongoing negotiations within the World Trade Organisation on disciplining fisheries subsides which commenced in 2001, have also struggled to provide for equitable disciplines that consider the specific needs of small-scale and artisanal fishers. As noted elsewhere in our work, the majority of fisheries subsidies go to big business, with a knock-on impact upon small-scale fisheries. As we demonstrated above, plastics pollutions can also be seen as an issue of (in)equity, with the most disparate impacts often on the most marginalised of communities. Simply put, equity needs to operate as both a principle for negotiations, as well as an outcome, as otherwise our capacity to deal with global problems such as plastics pollution is limited from the outset.

[1] /76/207, para 98.