Getting to Yes on the Plastics Agreement: Time for More Plasticity?

In response to the growing problem of plastic pollution, the United Nations Environment Assembly launched negotiations in 2022 to draft a treaty to “end plastic pollution.” But three years and five rounds of negotiations later, agreement remains elusive. The negotiations were supposed to conclude late last year in Busan, South Korea, but the meeting ended without resolving key issues. Negotiators remain far apart not only on how to address matters such as finance and decision-making rules, but even on the scope of the agreement itself, in particular whether to address “upstream” issues such as primary plastic production and the use of hazardous chemical additives.

Yet there is reason for optimism. Existing international environmental agreements offer a range of tools that have successfully bridged deep divides in past negotiations. In this article, we survey a variety of these tools, including flexible commitments, hybrid legal design, and staged evolution, and offer examples of how they might help resolve contentious issues in the plastics negotiations. The path to yes may exist if there is the political will to find enough tradeoffs to create an overlap between what some negotiating parties require and what others can accept.

Background on the Plastic Pollution Negotiations

Plastic pollution is now one of the most significant environmental challenges. Plastic use has grown rapidly over the last three-quarters century and is projected to triple again by 2060 under business-as-usual scenarios. Less than 10% of plastics are recycled, and more than 20 million tons leak into the environment, polluting land, rivers, and oceans; harming wildlife; and contaminating food systems. Microplastics and nanoplastics are ubiquitous; they are found in every ecosystem and food source, with potentially serious health effects.

Plastic pollution came onto the international agenda in 2012, when the United Nations Conference on Sustainable Development (Rio+20) launched the Global Partnership on Marine Litter. Two years later, the United Nations Environment Assembly (UNEA) adopted a resolution requesting the United Nations Environment Programme (UNEP) to prepare a report on marine plastic debris and microplastics. Initially, attention focused on marine plastic pollution. But the aperture opened wider when UNEA initiated the current negotiations, requesting a newly-created Intergovernmental Negotiating Committee (INC) to develop an “international legally binding instrument” (ILBI) that takes “a comprehensive approach that addresses the full life cycle of plastics.”

Thus far, the INC has met five times, beginning with an organizational session in December 2022 (INC-1) in Punta del Este, Uruguay, followed by sessions in Paris, Nairobi, and Ottawa. INC-5 in Busan was supposed to finalize the treaty text, for adoption at a diplomatic conference in spring 2025. But, for a variety of reasons, the negotiations have proceeded slowly. The inability to adopt a consensus text at INC-5 has necessitated a “resumed” fifth session (INC-5.2), scheduled for Geneva in August.

Successive iterations of the negotiating text developed by the INC Secretariat and Chair have been modeled on chemicals-related agreements such as the Stockholm Convention on Persistent Organic Pollutants (POPS) and the Minamata Convention on Mercury. Textual proposals have included provisions spanning the entire gamut of issues, including, inter alia:

scope;
objective;
principles;
commitments relating to plastic products, plastic product design, supply/sustainable production, releases and leakages, plastic waste management, and existing plastic pollution, including both binding and voluntary approaches;
means of implementation, including finance, capacity building, and technology transfer;
national plans;
reporting and information exchange;
implementation, compliance, and dispute settlement;
institutions, including a Conference of the Parties (COP), secretariat, and subsidiary bodies; and
amendments and annexes.

Major Issues and Dividing Lines

At this stage, the entire text remains open. This is not simply a function of the mantra common to multilateral environmental negotiations that “nothing is decided until everything is decided.” In the plastics negotiation, very little has, in fact, been decided. The draft text circulated by the Chair on the final day of INC-5.1, which the INC agreed to use as the starting point for negotiations at INC-5.2, includes many brackets and alternative options. Although it proposes compromise language for (comparatively) less controversial provisions, it remains uncertain whether even these proposals will be accepted by all participants.

Meanwhile, the hot-button issues are still completely unresolved and will require significant political compromises. These include:

the scope of the agreement, i.e., whether (and, if so, how) to address anything upstream of product design, including plastic production and plastic products that are problematic because they are unnecessary or contain hazardous chemical additives;
how to address financial assistance; and
what the decision-making rules should be for different kinds of future COP decisions.

The issue of whether to address plastic production has been particularly contentious, raising the questions:

whether “plastic pollution” should include only pollution involving plastics/plastic products themselves or also pollution caused by making plastics (including CO2 emissions); and
even if “plastic pollution” were limited to pollution involving plastics themselves, whether it would be possible to adequately address such pollution without stemming production and consumption.

Key Negotiating Blocs: The “High Ambition Coalition” and the “Like-Minded Group”

Although national positions do not break down neatly, on many issues a large number of delegations support one of two general approaches. On the one hand, generally speaking, the so-called “High Ambition Coalition,” a grouping of more than sixty States:

defines “plastic pollution” broadly, i.e., as any type of pollution resulting at any stage of plastics’ life cycle;
supports “upstream” obligations limiting and reducing primary plastic production, “problematic and avoidable” plastic products (such as single-use plastics), and hazardous chemical additives to plastics;
seeks to make the agreement as binding and prescriptive as possible; and
supports majority decision-making as a last resort, if consensus proves impossible, in order to prevent an individual State (or small group of States) from stymieing efforts to strengthen the agreement over time.

On the other hand, the “Like-Minded Group” (which includes, among others, Saudi Arabia, Russia, and China), as well as a number of generally-aligned countries such as India:

define “plastic pollution” narrowly, i.e., as pollution involving plastics themselves, and views the production of plastics (including emissions therefrom) as outside the INC’s mandate;
support more “downstream” measures focusing on product design (to promote reusability and recyclability), releases, and waste management;
advocate a bottom-up approach that gives Parties wide national discretion in formulating and implementing measures; and
consider that the agreement should follow the consensus decision-making practice of other multilateral environmental agreements.

Problem-Solving Tools

To overcome these differences, negotiators can draw on a rich toolbox from past environmental agreements. But before discussing various problem-solving tools that might help bridge differences between delegations, we note that there are often trade-offs between stringency and participation in environmental agreements. For example, an agreement with very strong legally binding commitments subject to robust enforcement might look good on paper but fail to get adopted or to attract ratification by key States. Conversely, an agreement with anemic provisions might be able to attract broad participation but fail to meet its environmental objective.

For our purposes, we assume that the goal is a consensus outcome within the current INC negotiating process, rather than one adopted by less than consensus or outside the framework of that process. On the assumption of broad participation, the trick will be finding the sweet spot that keeps everyone on board yet sufficiently addresses the underlying environmental issues.

Content of Commitments

A key aspect of any agreement is the content of the commitments:

Commitments can be made more or less stringent, for example, by setting out a standard that is harder or easier to implement and/or by giving Parties less or more time to do so.
Commitments can be softened in various ways, such as through the addition of modifiers (“appropriate” measures, “taking into account…”) or by allowing each Party to make certain judgments itself (an obligation to “take such action as it deems necessary to …”).
Commitments can be drafted to be somewhat general, giving discretion to individual Parties in terms of implementation, or to be intentionally ambiguous, leaving room for more than one interpretation.
Commitments can be agreed with respect to non-controversial or less controversial aspects in the agreement itself, with the negotiation of the potentially more controversial rules/details postponed until later. (In such a case, the decision-making rule for the subsequent adoption of provisions becomes crucial.)
Commitments can be designed by each Party, rather than negotiated, in recognition of countries’ different national circumstances, to promote broad participation in the agreement, and/or for other reasons. In designing such “nationally determined” commitments, Parties might be given broad latitude or need (or be encouraged) to follow certain disciplines (e.g., to submit an economy-wide target, to frame its commitment with respect to a given time period). Alternatively, commitments can be uniform, but defer to Parties’ national definitions of a particular term (such as “hazardous wastes”).
Commitments can focus on procedure/process rather than substance (e.g., a commitment to submit a plan, to report on what a Party intends to do, to report on past implementation).
Commitments can set out a “menu,” i.e., allowing Parties to choose among equally available options, or take the form of an obligation sitting alongside an optional alternative approach.
Commitments can be differentiated between or among different types of Parties (e.g., based on capacity, geography, fairness, special situations). The differentiation might involve the content of a commitment, its timeframe for implementation, some other form of flexibility, or whether it applies at all.
Commitments can be subject to various exceptions or the ability to opt in/opt out, which might be generally applicable; be available only to certain types of Parties or those that meet certain substantive preconditions; and/or require a Party to explain the need for its use. Such flexibility might be applied to a specific commitment, to an entire article/topic, through a final clause permitting reservations, or, at the extreme, through a contemporaneous or subsequent protocol or annex that a Party may choose whether or not to join. Exceptions might or might not be time-limited.

Further, environmental agreements often specifically provide for Parties to be able to take more stringent measures than those required, sometimes with the caveat (particularly in a trade-related context) that any such measures be consistent with other international agreements.

Any one or more of the above tools might be useful with respect to open issues in the plastics negotiations. For example, as noted, there is an outstanding question of whether and how the agreement might address the issue of problematic plastic products. On the one hand, the agreement might be quite stringent and specific, listing these products in the agreement (e.g., in an annex) and requiring Parties to prohibit their production and use. On the other hand, it might not address this issue at all. Bridging options might include:

giving each Party wide discretion in identifying what it considers problematic plastic products;
giving each Party discretion in what it considers problematic plastic products but constrained by a list of agreed criteria;
giving each Party wide discretion in the choice of measures to address problematic plastic products;
allowing each Party to choose from an agreed menu of options for addressing problematic plastic products;
requiring each Party to provide information about the criteria it is using to identify problematic plastic products and the measures it is taking to address them;
allowing each Party, if a list of problematic plastic products is adopted, to file exemptions to specific products on the list; and/or
allowing each Party to reserve to (or otherwise opt out of) the provisions/annexes applicable to problematic plastic products altogether or making them applicable only to those Parties that opt in.

As another example, there may be ways to address the more fundamental disagreement regarding the scope of the agreement, i.e., whether it should focus more narrowly on waste management or more broadly on the full life cycle of plastics, including production. In the Paris Agreement, where negotiators could not agree on the scope of Parties’ “nationally determined contributions” (other than that they must include mitigation), each Party determines for itself the scope of its contribution (e.g., whether it also includes adaptation, finance, etc.). By analogy, some form of nationally determined approach might provide a bridging solution with respect to scope. For example, the agreement could be silent (and therefore ambiguous) as to its scope and allow each Party to determine for itself the types of measures to include in its national plan.

“Bindingness”

Many environmental agreements use the legal character of commitments as a tool to bridge negotiating gaps, through hybrid approaches that combine mandatory and voluntary elements to accommodate different priorities.

The most common approach to legal character is to make commitments legally binding or not legally binding in relation to achieving a particular result (e.g., “shall not exceed…” versus “should not exceed…”). It is also possible to create a kind of halfway house between these two options by focusing the legal obligation on a Party’s behavior, rather than on a result (“shall seek to…” or “shall make best efforts to…”).

The INC’s negotiating mandate is to develop an “international legally binding instrument” but the mandate provides that the instrument “could include both binding and voluntary approaches.” Thus, the plastics agreement could take advantage of various legal character options, fashioning, as needed, a “hybrid” approach through a combination of binding (as to result and/or behavior) and non-binding approaches.

Finally, we note that there is often an inverse relationship between the strength of a commitment in terms of content and its legal character, i.e., some States may be more willing to agree to a commitment with stringent content if it is not legally binding and vice versa. To the extent some provisions are made non-binding, this could allow them to be given a stronger content.

Placement

Environmental negotiators often use the placement of provisions as a bridging solution:

The preamble can play a useful role. It can be used not only to make clear that a provision is not legally binding but also to lower its profile. Further, putting a provision in the preamble can be a halfway-house compromise between including it in the body of the agreement and not including it at all. Many environmental agreements also use the preamble to address the relationship to other international agreements (e.g., that there is no intention to affect rights and obligations deriving from existing agreements).
It can also be helpful to place material in a decision adopted alongside the agreement, rather than in the agreement itself. Like the preamble, but even more so, a decision can lower a provision’s profile. It can also house material that is politically sensitive, that will likely need to evolve over time (thereby avoiding a cumbersome amendment process), or that is overly detailed for the agreement itself.

In the plastics context, placement in the preamble or a contemporaneous decision could potentially be used to flag sensitive issues (such as extended producer responsibility) or to acknowledge background points (such as the expected three-fold increase in plastic use by 2060). Such an approach could help those seeking to avoid an issue in the body of the agreement while giving others a potential hook for raising the issue in the future.

Enforceability/Accountability

Just as there can be a potentially inverse relationship between the strength of the content of commitments and the strength of their legal character, States are often more willing to enter into stronger commitments (whether in terms of content or bindingness) if the “enforcement” of such commitments is not too threatening.

Although many environmental agreements include a traditional dispute settlement provision, these have almost never been used. This is both because of the nature of the subject matter (often global, rather than bilateral) and because of a preference that has developed over the years for non-adversarial procedures for reviewing compliance and implementation. If traditional dispute settlement procedures are included, the default is generally non-binding conciliation, with Parties given the option of signing up for procedures with a binding outcome.

In practice, environmental agreements generally rely on compliance processes that are multilateral, rather than bilateral; that are conducted in a friendly manner; and that result in facilitative, non-punitive consequences. There can be numerous variables, including, for example, which provisions of the agreement are subject to the process; the extent to which the process can examine individual performance as opposed to systemic issues; how the process gets triggered; what the process entails in terms of sources of evidence and decision-making; and the specific types of potential consequences.

Plastics negotiators might consider whether a trade-off between the stringency of commitments and the stringency of enforcement/accountability might help resolve one or more outstanding issues.

Finance

Many environmental agreements lay out substantive provisions and, in some cases, mechanisms regarding financial assistance to help developing countries with various aspects of implementation. When constructing such provisions and mechanisms, assuming they have agreed to include them, negotiators generally grapple with issues such as:

which Parties will be responsible for providing funding (e.g., a list of certain Parties; developed country Parties; all Parties, within their capabilities);
whether the provision of funding will be mandatory or voluntary;
which Parties will be eligible to receive funding (e.g., developing country Parties, Parties with economies in transition) or prioritized (e.g., small island developing States, least developed countries);
whether sources of funding will include innovative sources and/or private finance;
which aspect(s) of implementation funding will apply to;
whether the agreement will have its own fund/financial mechanism or rely on an existing fund/mechanism and, in the latter case, what the relationship will be between the agreement and such fund/mechanism; and
where negotiators are not able to agree, such as on the entity to operate the financial mechanism, whether the agreement should set forth an interim financial arrangement pending a future final decision.

Existing environmental regimes provide a wide continuum of models, ranging from very modest provisions (no funding obligations/decision on an appropriate voluntary funding mechanism punted to the future) to provisions reflecting binding funding obligations and/or new agreement-specific funds. Plastics negotiators thus have a panoply of possibilities to choose from, as well as the option of mixing elements from various models to form a bespoke approach.

Evolution

Environmental agreements are generally designed to evolve in response to scientific, technological, economic, and/or political advances. They frequently include both a regular overall assessment of the agreement (e.g., an “effective evaluation” or “stocktake”), which may lead to proposed modifications, and specific provisions addressing future updates. The fact that an original agreement is likely to evolve affords negotiators with additional tools to solve problems that arise when designing the original agreement.

Four basic ways an agreement can be designed to evolve are the adoption of:

decisions of the Parties;
amendments to the agreement;
annexes to the agreement; and
protocols or other separate but related legal instruments.

Decisions generally apply to all Parties. Protocols apply only to those that affirmatively join them. The same is generally also true for amendments, but they can also be designed to apply to all Parties or to apply unless a Party opts out within a specific timeframe. Annexes, as well as amendments to annexes, are often treated more flexibly than amendments, particularly if they are restricted to material of a more technical nature. For example, annexes often apply to all Parties unless they opt out.

Negotiators can take advantage of the future evolution of an agreement to:

explicitly postpone an entire issue, potentially including the issue of whether it should be addressed;
postpone the elaboration (or provide for the further elaboration) of an issue that is laid out in the agreement either partially or at a high level of generality;
provide for adjusting particular commitments, or adding new commitments, in response to science, etc.; and/or
set forth the vehicles for evolving the agreement (e.g., through clauses on amendments and annexes) but leave unspecified what they might be used for.

When postponing an issue, assuming they are not simply postponing it by being silent, negotiators have had to decide how prescriptive to be, as well as whether to treat various postponed issues in different ways. Variables include:

whether the agreement should dictate that the COP is to reach an outcome or merely consider the issue;
whether the agreement should dictate a time by which the COP is to consider the issue or reach an outcome (such as “no later than COP 2” or “as soon as practicable”);
whether the agreement should dictate, or leave open, in which form the future outcome is to be reflected (such as in a COP decision or an annex);
whether the agreement should require a particular kind of assessment to be carried out before certain decisions can be taken (e.g., that an expert panel(s) must conduct an environmental, socio-economic, and/or other type of assessment);
whether the agreement should specify the legal character of the future outcome (in which case, if it is to be legally binding and reflected in a COP decision, the agreement must provide a legal hook for such decision); and
what the decision-making rule should be for the adoption of the decision, amendment, amendment to an annex, etc.

While the prospect of an evolving agreement can be a positive for some, such as those who did not get everything they wanted in the original agreement or anticipate that there will be a need for a robust build-up of the regime over time, it can also raise concerns on the part of those who worry about future decisions being made over their objection and applying to them (whether legally or politically). As a result, what might otherwise be considered tedious “final clauses” of an agreement can become the focus of important debates on decision-making rules, the ability to opt out of annexes/amendments, etc.

In the plastics negotiations, where a key issue is how future COP decisions will be adopted, negotiators might consider, e.g.:

different voting rules for different topics;
weighted voting rules (where the super-majority must include certain types of Parties, e.g., donor countries, plastic producers); and/or
a less-than-consensus rule that prevents a small number of Parties from blocking the adoption of decisions but permits Parties to opt out.

Bridging Strategies May Help Provide a Path Forward

In the plastics negotiations, the gaps in position remain wide, particularly on production, finance, and decision-making. But the history of international environmental law shows that, even when consensus seems elusive, carefully crafted tools – including flexible commitments, ambiguity, hybrid legal designs, and staged evolution – can help pave the way forward.

In considering the prospects for INC-5.2, the real question is whether there is overlap between the minimum that some States deem necessary and the maximum that others, in the end, are prepared to accept. If not, then no amount of negotiating ingenuity will be able to produce consensus.

However, if overlap does exist, success at INC-5.2 can potentially be achieved through the skill of negotiators in deploying bridging strategies that satisfy all sides, delivering a treaty that addresses the urgency of the plastics problem while respecting national circumstances and priorities.

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Three years after the United Nations Environment Assembly launched negotiations to draft a treaty to end plastic pollution. The negotiations were supposed to conclude late last year in Busan, South Korea, but the meeting ended without resolving key issues. Negotiators remain far apart not only on how to address matters such as finance and decision-making rules, but even on whether to address certain issues at all, including primary plastic production and the use of hazardous chemical additives.

The post Getting to Yes on the Plastics Agreement: Time for More Plasticity? appeared first on Just Security.

Getting to Yes on the Plastics Agreement: Time for More Plasticity?

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