· 7 min read
A brief history
Environmental awareness about plastic pollution, including concern about its impact on marine life and public health, has grown significantly over the past decades. Countries have started recognizing the harmful effects of plastic pollution, and regional initiatives, such as the European Union's directives on single-use plastics and marine litter, have showcased the need for coordinated global efforts.
The United Nations Environment Programme (UNEP) began work on marine plastic litter, publishing several reports and convening various stakeholders to explore solutions to plastic pollution. The United Nations Environment Assembly (UNEA), the United Nations (UN) highest-level decision-making body on environmental issues, provided the platform for resolutions on addressing marine plastic pollution.
A major breakthrough occurred when Rwanda and Peru presented the idea of a treaty to address plastic pollution to the Fifth Session of UNEA in Nairobi, Kenya, in 2022. They proposed a resolution to eliminate plastic pollution by establishing an international, legally binding instrument that addresses the entire life cycle of plastics, from production and design to waste management and disposal. Over 175 countries supported the resolution entitled “End plastic pollution: towards an international legally binding instrument” (referred to hereafter as “the plastic pollution treaty”).
The UNEA resolution mandated a series of formal negotiations under the UNEP umbrella to adopt a legally binding plastic pollution treaty by the end of 2024. In 2022, an ad Hoc Open-Ended Working Group was established to prepare the work for the Intergovernmental Negotiating Committee (INC), which held its first meeting in the same year.
The INC exists to conduct the negotiations. There have been five sessions of the INC, and the latest concluded in Busan, South Korea, in December.
The work of the INC is intended to be guided by Rules of Procedure that must be agreed upon. However, similar to the impasse that has plagued the UN Framework Convention on Climate Change and the Convention on Biological Diversity since their inception, there is, as of yet, no agreement on the Rule regarding making decisions. This can be contrasted to the rules applying to the Ramsar and CITES conventions.
The INC draft Rules of Procedure requires all efforts to be made to reach consensus, but if consensus is not possible, to allow for a vote, with a two-thirds majority required for a decision to be adopted. However, as the Rules of Procedure have yet to be agreed upon, the INC is continuing to work based on consensus.
At the fifth INC, no decision was reached on adopting a plastic pollution treaty. Disagreements were most notable on goals and measures for reducing overall plastic production and on chemicals of concern in products. The INC was adjourned and will resume in the second half of 2025.
Strong support for a new plastic pollution treaty
Although no agreement was reached at INC 5 in Busan, a majority of more than 100 countries and the EU supported an ambitious, legally binding treaty on plastic pollution.
The INC will resume, but what if no agreement is reached in 2025 under this UNEA process? Does that mean nothing can happen? Will there be no treaty?
Treaties can be agreed upon outside of the UN
The Vienna Convention on the Law of Treaties (1969) governs treaties between countries, known as states. It defines a treaty as "an international agreement concluded between states in written form and governed by international law."
The forum for negotiating and agreeing upon a treaty is open to states to determine. It can be within the UN, another intergovernmental forum, such as the World Health Assembly, or between states themselves through a process they choose.
As such, a plastic pollution treaty can be agreed upon through the existing UNEA process, or if states decide it becomes necessary, they can conclude the treaty outside of it.
Examples of treaties negotiated outside of the UN
Several treaties have been negotiated and adopted outside the UN and other inter-governmental fora. Notable examples include the Ramsar Convention on Wetlands, adopted at a plenipotentiary conference hosted by Iran in 1971; the Washington Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), adopted at a plenipotentiary conference hosted by the USA in 1973; and the Ottawa Convention on Land Mines, adopted at a plenipotentiary hosted by Norway in 1997 (where the negotiations started under the UN, the UN Conference on Disarmament, but were moved out when no consensus could be reached for many years).
These three treaties are not regarded as UN treaties as they were not negotiated under the UN's umbrella, although the CITES Secretariat is administered through UNEP. However, due to their status as international legally binding instruments, such treaties are registered with the UN Secretariat.
What if most INC countries decide the current negotiating arrangements cannot deliver an ambitious enough treaty?
The preferable outcome remains for an ambitious, legally binding global plastics pollution treaty to be concluded under UNEA’s auspices, thereby ensuring broad inclusivity. However, we see at least two other possible pathways to success. One involves remaining within the UNEA process but scaling back the level of ambition (for now); the other is opting out of the current UNEA progress and initiating a new one.
The critical mass option
One path is for the more than 100 states that expressed commitment to an ambitious plastics pollution treaty to decide to hold a plenipotentiary conference outside of the UN, adopt their own rules of procedure, and adopt an ambitious treaty text through a tailored diplomatic process that maintains ambition and urgency.
These countries could then sign and ratify the treaty (thereby becoming Parties) and bring it into force. The treaty could then be open to all states to join at a later date. Further, the treaty could include provisions relating to dealing with non-parties. For example, it could oblige a Party trading with a non-party to require documentation that substantially conforms to the treaty's requirements.
This option is admittedly not ideal. It results in limited participation (at least initially) and potential fragmentation. It is not, however, unprecedented and remains a real and viable option to pursue in addressing the global plastic pollution crisis should it become necessary.
The pathway to consensus option
Another option that would remain under the UNEA process is to focus on areas of consensus while deferring contentious issues for future discussions. Under this option, discussions on primary plastics production and chemicals of concern in products could be deferred. The treaty would prioritize agreed-upon measures, such as product design standards, resource efficiency, waste management, and a circular economy approach. It would allow countries to collaborate on immediate, impactful solutions while building trust and momentum for future negotiations.
Under this scenario, high-ambition countries could lead, for example, by implementing stricter domestic measures, which should be allowed under the treaty, investing in innovation, and providing financial and technical support for global implementation.
Under this option, measures for transparency and accountability will be critical to ensuring progress. These include a global plastics monitoring system to track product chemistry, production, trade, and consumption, as well as encouraging national strategies to align production and consumption with sustainability goals.
While also not ideal, this ‘less ambitious’ way forward could nonetheless attain significant progress by addressing immediate priorities, respecting diverse perspectives, and laying the groundwork for a comprehensive solution in the future.
Conclusion
Consensus in international treaty law-making is difficult, but it is worth using all possible means to achieve it. In today’s world, it is also a construct that many nation-states can find frustrating and too constraining in the face of serious environmental and economic threats.
Before INC-5.2, states seeking solutions should consider the various options available to them to progress towards the desired destination. Whatever approach is adopted, we can’t afford another impasse. We have offered two ways forward (there may be others).
The “critical mass option” moves away from the UNEA consensus model and provides for a coalition of states that have expressed commitment to an ambitious plastics pollution treaty to band together to adopt such a treaty, with opt-in provisions for other states to join later.
The “pathway to consensus option” stays the course with the current UNEA consensus model and works towards a mutually agreed outcome, one that has universal buy-in and enables immediate priorities to be addressed while allowing front runners to adopt stricter domestic measures and offering a pathway for others to catch-up.
Given the benefits of universal buy-in, we urge states to strive for consensus on an immediate way forward. However, if this option either closes or lacks any reasonable sense of ambition, then high-ambition states have alternatives that have been used before and can be used again.
illuminem Voices is a democratic space presenting the thoughts and opinions of leading Sustainability & Energy writers, their opinions do not necessarily represent those of illuminem.
References
- INC-5 followed four earlier rounds of negotiations: INC-1, which took place in Punta del Este in November 2022, INC-2 in Paris in June 2023, INC-3 in Nairobi in November 2023, and INC-4 in Ottawa in April 2024.
