Plastic Treaty: A Paris Agreement or a specific Convention?
The first round of negotiations for an internationally legally binding instrument (ILBI) to stop plastic pollution ended on Friday 2 December at Punta del Este, Uruguay. The ILBI has the possibility to become a global health and human rights treaty, but to succeed it has to prevent the possibility for States to use the veto and halt decision-making.
“Plastics are fossil fuels in another form and pose a serious threat to human rights, the climate and biodiversity. As negotiations towards an agreement to beat plastic pollution continue, I call on countries to look beyond waste and turn off the tap on plastic” said on December 2nd António Guterres, Secretary General of the UN, on Twitter. With the same words Gustavo Meza-Cuadra, chair of negotiations, closed later the same day the first round of negotiations of the Intergovernmental Negotiating Committee (INC-1) that run from 28 November to 02 December in Punta del Este, Uruguay.
More than 2,300 delegates from 160 countries and stakeholder groups participated in the negotiations and the associated multistakeholder forum. Discussions included important issues such as health and human rights, the intention to cover plastics as materials and products — including banning toxic chemicals associated to plastic — as well as fossil fuel subsidies as drivers of the plastic crisis. Some countries called on cap on production.
Many delegations recognized the importance of scientific evidence and called for more involvement of scientists, also through the potential establishment of a dedicated scientific body. The EU stated that data are already available to make informed decisions to end plastic pollution, and called for using the precautionary principle.
Chemicals associated with plastics and human health
During the discussions, delegates recognized that numerous analyses of the chemical additives in plastics have negative impact on human health and proven “without a shadow of a doubt that there is a need for urgent global action”. It was pointed out that the World Health Organization has already acknowledged the issue and discussions were carried out under the Stockholm Convention on Persistent Organic Pollutants.
According to an observer “scientists were pivotal to change to include the narrative about human health”. The Endocrine Society reiterated that the plastics treaty is a global public health treaty, and noted the scientific consensus that endocrine disrupting chemicals in plastics cause non-communicable diseases, with greatest impacts for the most vulnerable; and urged that scientists should participate in all contact groups and treaty processes. Chile called for the development of a database of scientific information, and underscored the need for synergies with the Basel, Rotterdam and Stockholm (BRS) and Minamata conventions and the Montreal Protocol, as well as other conventions and agreements.
The Basel Action Network called for a mechanism to provide full scientific transparency for chemicals in plastic, pointing to the Dubai Declaration on International Chemicals Management in this regard; and noted that all shipments of plastic waste are out of compliance with the Basel Convention as they do not provide information on chemicals and additives.
Conflict of interests
In a document published the 30 November, the UN Human Rights Office of the High Commissioner (OHCHR) said that “There is a fundamental and irreconcilable conflict between the interests of the plastics industry and businesses deeply implicated throughout its supply chain and the human rights and policy interests of people affected by the plastics crisis. The plastic industry has disproportionate power and influence over policy relative to the general public. Human rights are needed to counter-balance these powerful interests”.
In order to establish clear boundaries to conflict of interest, OHCRH suggests taking a cue from Article 5.3 of the WHO Framework Convention on Tobacco Control (FCTC), which safeguards policy development from industry interests and creates a framework for accountability. “Clear boundaries on conflict of interest should be established for the negotiations process and the implementation of the new Plastics treaty drawing from existing good practices under international law, for example, article 5.3 of the WHO Framework Convention on Tobacco Control states that “Parties shall act to protect [their public health policies with respect to tobacco control] from commercial and other vested interests of the tobacco industry…”
Human rights and inclusive transition
There was an important presence of indigenous people, surrounding communities affected by the petrochemical industry, wastepickers, youth, women, that contributed to the discussions, although an observer said this is “still not enough”. Especially compared to the large number of representatives of the “Fossil fuel and petrochemical industry which were supported in the negotiations with impunity” and which “blamed consumer behaviour and called for false solutions.”
IPEN, a coalition of over 600 NGOs in the majority from low- and middle-income countries that calls for a toxic-free world, decried the disproportionate participation of industry actors, and called for funding currently channeled to the multistakeholder forum to be channeled to participation of youth and delegations from developing countries.
New Zealand said the ILBI must contain measures to facilitate indigenous perspectives and traditional knowledge. The Children and Youth Major Group said that the ILBI needs to include the principle of intergenerational equity, and, highlighted the difference between stakeholders and rights-holders in the INC’s decision-making processes. The difference between stakeholder and right-holders was also highlighted by the UN Human Rights Office (OHCHR) which also called for the necessity of human rights-based approach in the future plastic treaty.
Kenya and South Africa announced the Just Transition Initiative to end plastic pollution in a way that is as fair and inclusive as possible to everyone concerned, creating decent work opportunities and leaving no one behind. The Just Transition Initiative will be developed in consultation with the International Alliance of Waste-pickers and will be finalized in the next months before the INC-2.
Cap on production
Several countries said the ILBI should include a cap on production. The EU said the ILBI should reduce overall production and consumption of plastic, regardless of the raw material and called for core obligations on: design criteria; environmentally sound waste management; phasing out unnecessary, avoidable, and problematic plastics, and making others reusable, repairable, and recyclable; and cautioned against measures that could have unintended consequences (the so-called regrettable substitutions). The Small Island Developing States said the ILBI should include binding measures for primary production establishing baselines, similar to the Montreal Protocol, one of the most successful multilateral agreements. The Montreal Protocol is prescriptive in nature and established a strong international strategy for phasing out hydrochlorofluorocarbons (HCFCs) with clear deadlines for phase out various chemicals.
New Zealand called for dramatic upstream interventions, naming fossil fuels and subsidies for plastics makers as a key drivers of the plastics crisis. “Over 99% of plastic is made from chemicals sourced from fossil fuels, and the fossil fuel and plastic industries are deeply connected. Each year governments spend an estimated US$500 billion of public money to subsidise fossil fuels. These subsidies artificially lower the cost of production and consumption, resulting in low prices of virgin plastic and many plastic products, which do not reflect true environmental costs” said Ms Renee Yap, of the Ministry of Foreign Affairs and Trade of New Zealand.
Core obligations vs voluntary elements
Several delegations said the ILBI should combine legally binding core obligations, control measures, and voluntary elements, and address the entire plastics lifecycle. The majority of countries and stakeholders were in favor of a top-down treaty with mandatory requirements. But a smaller number of countries prefers a bottom-up voluntary approach. The EU called for a strong monitoring and reporting framework, including on production, trade, value chains, and leakages, and underlined the importance of common monitoring and reporting frameworks, highlighting those under the Minamata Convention, the most recent global agreement designed to protect the environment and health from anthropogenic emissions and releases of mercury and mercury compounds.
Several countries (including the African Group, Bangladesh, Chile, Mexico, The Pacific Small Island Developing States, China, Turkey, Pakistan and Costa Rica) at various degrees suggested that the ILBI should establish a framework to implement Extended Producers Responsibility (EPR) schemes at national and international level and execute social corporate responsibility. They also called for the precautionary principle and the polluters pay principle. The African Group said the ILBI should also include measures to prevent illegal trafficking and dumping of plastic waste.
Saudi Arabia expressed its favor for voluntary approaches and downstream measures to tackle plastic waste and called for “recognizing the vital role of plastics in sustainable development and the achievement of SDGs and the importance of response measures; and an approach based on national circumstances, underpinned by a bottom-up approach and nationally determined action plans, without any standardization and harmonization of these plans”. The US said that “control measures should consist of nationally determined policies and measures that are regulatory and voluntary in nature”.
Lengthy discussions on procedural rules could be part of an attempt to prevent a binding treaty
Discussion on rules of procedure prevented focusing on elements of the treaty, and only a few deep discussions about the elements of the ILBI were discussed. One national delegate told Renewable Matters: “Procedural issues have slowed down the process again, the failure of the bureau to be elected does not allow for a fully operational bureau, and will force the reopening of the session to deal with this agenda item again.” What the delegate is pointing to is discussions on Rule 37 (on voting rights) of the draft rules of procedure.
During the preparatory meeting (OEWG) in Dakar, Senegal, six months ago, the draft rules of procedure were agreed but not adopted. On 30th November, the 3rd day of INC-1, Saudi Arabia asked to discuss again Rule 37 to question if the EU had the right to vote for its 27 Member States or if each one should cast their vote individually. Magnus Løvold and Torbjørn Graff Hugo, experts from the Norwegian Academy of International Law interpreted this proposal of Saudi Arabia as “a first step in a stratagem to forestall any attempt to take the Committee’s work to a vote in the first place”. Qatar, Bahrain, and Egypt stepped up in support of the Saudi proposal, and China proposed to place the entire rules of procedure in brackets.
Indeed, another procedural issue was raised just before the ending of the negotiations. On Friday 2 December around 20:00 Uruguay time, India joined Saudi Arabia in stating that they wish to remove the voting possibilities in rule 38 (on decision-making). Rule 38 is about adoption of decisions and currently reads “The Committee shall make every effort to reach agreement on all matters of substance by consensus. If all efforts to reach consensus have been exhausted and no agreement has been reached,the decision shall, as a last resort, be taken by a two-thirds majority of the representatives of Members who are present and voting.”
Magnus Løvold and Torbjørn Graff Hugo write: “The possibility of bringing an issue to a vote in the negotiations is enshrined in rule 38 of the draft rules of procedure. An argument can be made that as long as there are unresolved issues related to voting rights in rule 37, the Committee cannot apply rule 38, even if the rest of the rules have been provisionally applied. That is to say, it is highly unlikely that voting would take place as long as there is bracketed text in rule 37. In this scenario, the plastic pollution treaty could fail and end up in an eternal diplomatic gyre.”
Consensus can undermine the effectiveness of global action
“When any participating State can veto any proposal, the best you can hope for is a consolidation of status quo. […] It is also why global treaties do not require ratification or accession by all UN Member States to enter into force” and “majority decision-making usually produces better results than consensus or unanimity says the WWF report Success criteria for a new plastic treaty. “In the long run, moreover, it is usually easier to increase participation than to change the text of the treaty. It is therefore better to adopt an ambitious treaty with a critical mass of States on board than to accept a weak treaty by consensus”.
Good examples of treaties are the Basel, Rotterdam, Stockholm Convention, the Minamata Convention, the Montreal Protocol who are prescriptive in nature and include the possibility of voting if consensus could not be reached. The UN Framework Convention on Climate Change (UNFCCC) and the Paris Agreement, instead, shows problems linked to working with consensus. As reported in the book I negoziati sul clima — Storia, dinamiche e future degli accordi sul cambiamento climatico, the rules of procedure for the Conference of the Parties (COP) of the UNFCCC were drafted as early as 1996 but “surprisingly, have never been fully adopted due to a lack of agreement among countries precisely on the voting modalities, and particularly on Rule 42. In such a regulatory vacuum, decisions of the Conference of the Parties are still made by “consensus””. Recent examples show how consensus can undermine the effectiveness of global action to solve global problems. At the Cop27 climate talks last month, a call by more than 80 countries to phase out fossil fuels was not put to open debate because Saudi Arabia, Iran and Russia, oil and gas producers, objected. At Cop26, the US denied developing countries — the overwhelming majority of parties — to change the text of the Glasgow agreement to increase funds for adaptation. After almost 30 years of negotiations, an agreement on how to stop greenhouse gas emissions is still far away.
Delegates agreed to postpone the consideration of draft rule 37 (on voting rights), to INC-2, which will be carried out in Paris, Francia, from 23 to 27 May 2022.
Magnus Løvold told to Renewable Matter: “I think states advocating a treaty with global, common rules see the need to resolve the issues related to the rules of procedure. Whether they will success, however, is an open question. It will be interesting to see how this plays out at INC-2 in Paris.”
Article first published on Renewable Matter magazine the 6/12/2022
