International Law to the Rescue or Clutching at (Plastic) Straws? Reflections on the Birth of a “Full Lifecycle” Plastics Treaty
By Stephanie Switzer and Elisa Morgera - Posted on 5 May 2022
Plastics are everywhere. They are the ubiquitous modern material; flexible, stable, and remarkably hard wearing. Their utility means we encounter plastics throughout our day. From the face masks we wear to protect us from Covid-19, to our takeaway coffee in the morning – served to us in single use plastic coated cups – to the cellophane wrapped vegetables we buy for our dinner at night, our lives are encased in plastic.
Yet, we are becoming more educated of the impacts of plastics. News reports gloomily showcase the discovery of microplastics in our lungs, as well as in our blood. We are now fully aware of the environmental impact of plastics pollution, particularly in the world’s oceans. Indeed, global awareness of the detrimental impacts of marine plastics has increased substantially, with the BBC’s The Blue Planet having a particular effect on public consciousness due to its showcasing of emotive images of sea creatures trapped in drinks packaging.
Plastics pollution also poses a particular risk to human rights. 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.
Given the increased public awareness, and indeed concern over the impacts of plastics pollution, the idea that there needs to be a global treaty to tackle this issue has gained momentum over the last number years. Activists, governments, and the general public have all joined forces to call for global action to deal with the plastic soup we are confronted with on a daily basis. While ten years ago the idea of such a treaty would have been unthinkable, in early March 2022, 175 countries endorsed the monumental decision to begin negotiations on a legally binding international instrument on plastic pollution. This decision was taken in 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 and its relevance for a healthy ocean and human rights.
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 in a way that considers the global production and consumption of plastics.
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.' 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 UNEA 5.2 Resolution directs that an Intergovernmental Negotiating Committee (INC) be established to take forward discussions on the proposed Treaty. The Resolution tasks the INC to take into account in its deliberations a number of priorities, including consideration, ‘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 pre-date 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.’
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, and also affect 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 below 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 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 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 is linked to fossil fuel production. Hence, the Treaty presents an important opportunity to address the twin environmental and equity challenges of reducing plastic pollution at source and contributing to climate change mitigation.
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.’ 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 by the fact 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 Organization 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.
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 Organization 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 in an earlier One Ocean Hub post 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 pollution 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.
This is an abridged version of a blog post that was first published by One Ocean Hub.