Ocean plastic
The 5th Session of the Intergovernmental Negotiating Committee to Develop an International Legally Binding Instrument on Plastic Pollution held in Busan, Republic of Korea, in November ended without the hoped-for conclusion of negotiations and a text ready for signature. With States falling into two main camps, the high-ambition coalition of nearly 100 States pushing for a strong treaty and the ‘like-minded group’ of just six States backed by strong fossil fuel and plastic lobbies aiming for as weak a text as possible. Delegates failed to reach agreement on key issues, such as imposing a cap on plastic production, on restrictions on the use of chemicals in production, on financing mechanisms to assist developing States with the transition away from plastic, and on whether mandatory or voluntary measures to regulate plastic are to be included in the treaty. The session will be resumed, at a time and place still to be determined, and will then use the latest ‘Chair’s Text’ as the starting point for negotiations.
Read the ENB analysis of the meeting and the article Plastics Treaty: What Went Wrong in Busan? What’s Next?
breaking it down: what is the latest on the plastic pollution treaty?
The UN Environment Assembly decided in March 2022 to begin negotiations to draft a new international legally binding instrument (ILBI) on plastic pollution, regulating the production, distribution and end of life stages of the material. The Open-ended Working Group met in Dakar in May 2022, completing the rules of procedure and the programme of work. The first Session of the Intergovernmental Negotiating Committee (INC-1) was held in Punta del Este, Uruguay, in November 2022, the second meeting in Paris, France, in May 2023, session three at UNEP headquarters in Nairobi, Kenya, in November 2023, session four in Ottawa, Canada, in April 2024 and the fifth will be held in Busan, Republic of Korea, in November 2024, with a diplomatic conference of plenipotentiaries in mid 2025 in either Ecuador, Rwanda or Senegal, at which the instrument should be adopted and opened for signature.
At its first session in Uruguay, the Intergovernmental Negotiating Committee (INC) requested UNEP to prepare a document with “potential options for elements towards an international legally binding instrument, based on a comprehensive approach that addresses the full life cycle of plastics as called for by UNEA resolution 5/14, including identifying the objective, substantive provisions including core obligations, control measures, and voluntary approaches, implementation measures, and means of implementation”, indicating that the document “could include both legally binding and voluntary measures”. Views expressed during INC-1 together with the 164 written submissions from members of the INC and observers were taken into consideration and included in UNEP’s document with potential options for elements towards an international legally binding instrument, available here. The documents submitted by States and Stakeholders and may be accessed here. A survey of State submissions is available here (New York University School of Law) and here (World Wildlife Fund for Nature).
The second session of the INC in France, began with three frustrating days of discussions and negotiations relating to the Rules of procedure and voting rights rather than plastic. Delegates only began work on substantive issues thereafter but still managed to address objectives and obligations, as well as means of implementation and other measures in two contact groups. According to the IISD Earth Negotiations Bulletin’s summary of the meeting, “INC-2 concluded by setting out a path for the intersessional period leading to INC-3, mandating the preparation of a “zero draft” of the new treaty for consideration at INC-3, and allocating time for a one-day pre-meeting event to discuss a synthesis report of elements that were not considered during INC-2. They were also able to elect the remaining members of the INC bureau, through two votes, and to come to an understanding on the provisional application of the draft rules of procedure”. See the WWF’s summary of the meeting here.
On 4 September 2023, the Zero draft text of the international legally binding instrument on plastic pollution, including in the marine environment was released, which formed the basis of discussions at INC-3 at UNEP headquarters. With a strong presence from the petrochemical industry (a CIEL analysis revealed that 143 fossil fuel and chemical industry lobbyists registered for the negotiations, numbering more than the delegations of 70 States put together) and tactical maneuvering from members of the newly-created Global Coalition for Plastics Sustainability (consisting of Russia, Cuba, China, Saudi Arabia, and Bahrain, among others) and other States, the goal of the High Ambition Coalition to End Plastic Pollution to move discussions forward was somewhat derailed. The new Global Coalition for Plastics Sustainability called for the treaty to focus on waste management, for reduction targets to be set at the national level, for trade issues to be left out of the treaty text and for discussion and agreement on scope and definitions before moving forward. In contrast, the High Ambition Coalition pushed for globally binding regulations with strong controls established for the whole lifecycle of plastics.
INC-4 in Canada discussed the Revised draft text of the international legally binding instrument on plastic pollution, including in the marine environment (UNEP/PP/INC.4/3). It closed with some progress on the draft text but much bracketed text still to be discussed at the final session. At the close of the session, 29 nations launched the Bridge to Busan: Declaration on Primary Plastic Polymers, reaffirming that the treaty must address production. Nominated national and technical experts gathered in the interim period in Bangkok, Thailand, for the meeting of the two Ad Hoc Intersessional Open-ended Expert Groups established at the fourth session of the Intergovernmental Negotiating Committee to develop an international legally binding instrument on plastic pollution, in the run-up to the fifth session.
Based on the speed of similar processes at the United Nations, where similar negotiating processes have taken about 4 years to draft, the INC has set itself a tight and challenging agenda. If delegates do manage to complete the text by 2025, and the treaty opened for signature, we are probably looking at another 4 years for the treaty to enter into force. In the meantime, it is imperative that States start looking to establish national plans to eliminate unnecessary plastic, reduce virgin plastic, expand the circularity of plastic already in use and improve the management of current waste structures.
what are the building blocks of the new plastic pollution treaty?
Faced with the massive increase of plastic production and its impact on our health and the environment, the UN Environment Assembly took the landmark decision in March 2022 to begin negotiations to draft a new international legally binding instrument (ILBI) on plastic pollution, regulating the production, distribution and end of life stages of the material. The negotiations mark the beginning of a process which will aim to strengthen global environmental governance by tackling the environmental, social and economic cost of plastic.
The process is clearly complicated, involving stakeholders from States through to informal waste pickers via fossil fuel companies, multinational companies and consumers. Leadership in the negotiation process will be a key element, as will the creation of ‘coalitions of the willing‘ for the various elements under discussion with intersessional work imperative in order to allow for the work of drafting the text to move forward at speed at each of the five sessions planned for the INC. It is highly doubtful that universal support for the treaty will be achieved. Some States are calling for strong regulation, others wish to avoid multinational regulation. Extensive lobbying from States in which the plastic production industry currently thrives is to be expected. On the other hand, massive support for the call to regulate the industry can be seen at the level of civil society around the world. The INC must decide how far the treaty will oblige States to act, whether the instrument will be top-down, with binding provisions obliging States to follow regulations and imposing restrictions on plastic trade (similar to other strong environmental agreements like the Montreal Protocol, Stockholm Convention or Minamata Convention) with a mandatory system for setting and reporting on National Action Plans and a compliance mechanism, or bottom-up, allowing States to set, report on and develop their own targets on a voluntary basis with a soft monitoring and review process (as with the Paris Agreement).
Negotiators will need to take these approaches into consideration:
A life cycle approach: addressing all stages of a plastic product, from the production, design and use through to end of life (so upstream, midstream and downstream) and involving stakeholders at each stage in the life cycle. The concept of Extended Producer Responsibility must be included, encompassing management of the potential impacts of a product in all stages of production, distribution, use, collection, reuse, recycling, reprocessing and disposal and a circular system must be the goal, moving away from the linear take-make-waste use to the zero waste, circular economy, whereby plastic is viewed as a valuable material which should not be wasted.
Upstream involves the extraction of fossil fuels, the use of alternative feedstocks (including bio-based feedstocks and recycled content) and the production process. Ending subsidies for the fossil fuel industry and capping the production of virgin plastic should be encouraged while a competitive pricing index is established through taxes levied on virgin materials and/or by offering subsidies for the use of recyclates. Incentives need to be provided to ensure that industries do not return to virgin plastic as an easier and cheaper alternative. Restrictions should be implemented on single-use applications and the use of toxic additives. Harmonized standards should be created for feedstock materials and recyclates.
Midstream involves the design and production of plastic products and plastic-containing products, the distribution, trade, and placing on the market of these products and their consumption. Products and packaging need to be evaluated for their content of problematic and hazardous chemicals and for their level of usefulness. Responsible and sustainable consumption needs to be encouraged for private consumers, public procurers, business and industry. A sectoral approach with a working programme for each industrial sector, whether fisheries, agriculture, packaging, textiles, healthcare or construction needs to be established.
Downstream involves the repair, refurbishment, reuse, recycling of products, waste minimization, capture of microplastic emissions, a responsible plastic waste trade (with the regulation of exports), and disposal of residual wastes (composting, incineration or landfill), together with the tracing and controlling of illegal dumping. By taking away the stigma attached to waste and encouraging a mindset where plastic is seen as a valuable commodity and repair as preferable to disposal, government incentives can help attract investment in the recycling industry. Particular attention needs to be paid here to the informal waste collection sector.
A global approach: establishing definitions for plastic terms (e.g. recyclable, compostable, problem plastics, and toxic), harmonized metrics, classification and labelling for chemicals and materials (enabling consumers and the waste disposal industry to identify resin types, recycle more efficiently and establish a stable market for supply and demand of recycled plastic), standards for the calculation of plastic credits, and allowing for plastic produced in one State, used in a second, recycled in another and the use of the recycled material to manufacture goods in yet another.
A cross-sectoral approach: bringing together States and non-State entities from business, NGOs, academia and civil society, providing a programme of work for each industrial sector, whether fisheries, agriculture, packaging, textiles, healthcare or construction.
An inclusive approach: States are approaching the issue from a huge variety of production, consumption and impact levels. The situation of small-island developing States and marginalised communities, as well as equity issues (such as a just transition, human rights and public health and the right to a healthy environment) need to be addressed.
A data-driven approach: scientific evidence, data and information relating to distribution and trade of plastic products, levels of plastic pollution needs to be collected, reviewed and made available.
An incremental approach: the instrument should strengthen over time, with the COP able to accelerate or expand measures.
The instrument will need to include these elements:
Objectives: to freeze and phase out single-use, problematic, unnecessary, hazardous and harmful plastics through design, to remove toxic chemicals added to plastics, to prohibit certain products (such as microbeads in cosmetics), to promote plastic-free sustainable alternatives and stop plastic pollution.
Core elements: to set obligations regarding elimination and minimisation (the production and consumption of high-risk and unnecessary plastic), circular approaches (design and development of a circular economy) and safe management of plastic (waste management) and the development of mandatory national action plans.
Supporting provisions: to include definitions, reporting, development, implementation and updating of National Action Plans, a comprehensive monitoring and reporting framework, transparency, technical assistance and financial cooperation.
Institutional arrangements: to establish a review body, Conference of Parties, secretariat, financial, technical and capacity building support.
Final clauses: to address depositary, signature, ratification, reservations, declarations, entry into force, enforcement, dispute settlement, amendments, revisions, modifications, duration, withdrawal and termination.
Regulation
The fragmented legal regime addressing elements of the plastic life cycle that currently exists should be pulled together under the instrument, allowing for better coordination between the different texts, including the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal, the Stockholm Convention on Persistent Organic Pollutants, the Paris Agreement on climate change and other international conventions.
Clear legal requirements would assist States in determining their NAPs, their need for financial or technical assistance, and would make it easier to monitor and verify the plans.
Monitoring and reporting
The establishment of a regular review and reporting system is needed to monitor:
the current and future levels of environmental pollution;
the development of national action plans to reduce pollution;
the amounts of plastic produced; and
the availability of recycled feedstock and materials.
A scientific body under UNEP could both support this and collect and conduct open-source research.
Technical and financial support
A support network for policymakers, plastic producers and waste management operators should be available for technical advice for production, design and recycling as well as an international mechanism with funding opportunities for developing States. The text should include the free exchange of knowledge and technology, as well as the development of capacity building.
A fund could also be created following the example of the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage. Contributions to the fund by oil importers and exporters allow for compensation to be provided in the event of an oil spill. In a similar vein, a Plastics Fund with contributions from plastic producers could be used to support cleanup operations.
Read about ocean plastic pollution here.
Back to Blue Initiative: A Sea of Brackets
WWF: Progress made at INC-4 but more work needed to keep pace with urgency of plastic pollution crisis
