Earlier this year, the UN Environment Assembly (UNEA) requested the UN Environment Programme (UNEP) Executive Director to convene an Intergovernmental Negotiating Committee (INC) to develop an international legally binding instrument on plastic pollution, including in the marine environment, by the end of 2024. One of the fundamental decisions negotiators will have to make as they embark on this process is how the new agreement will be structured.
Ahead of the INC’s first meeting, the UNEP Secretariat issued a document (UNEP/PP/INC.1/4) outlining broad options for the structure of the treaty negotiators would need to weigh before they consider further aspects of the future agreement. The talks will be informed by the latest information on plastic pollution science (UNEP/PP/INC.1/7).
Following a brief introduction to the plastics problem, this Policy Brief summarizes legal options for the treaty’s structure, highlighting plastics-related issues member States could consider in their deliberations.
Plastics pollution: scale, impacts, solutions
The Secretariat’s summary of plastic pollution science indicates that “global plastic production and consumption has grown exponentially since the 1950s and is set to triple by 2060 if business continues as usual.” The document points to increasing clarity concerning the links between plastic and human and environmental health, warning that plastic pollution is lethal for many marine, freshwater, and terrestrial species. The summary further notes that throughout its life cycle, plastic also contributes to climate change, with plastics accounting for 3.4% of global greenhouse gas (GHG) emissions in 2019.
The document notes that at the core of the plastic pollution crisis is “the resource-inefficient, linear, take-make-waste plastic economy,” which, it argues, should be replaced by a circular economy, which forms a critical part of the solution to the plastics problem.
The document proposes four strategic goals that can guide the transition to a circular economy: 1) reduce the size of the problem by eliminating and substituting problematic and unnecessary plastic items, including hazardous additives; 2) ensure that plastic products are designed to be circular – reusable as a first priority, and recyclable or compostable after multiple uses at the end of their useful life; 3) close the loop of plastics in the economy by ensuring that plastic products are reused, recycled, or composted; and 4) manage plastics that cannot be reused or recycled (including existing pollution) in an environmentally responsible manner.
The document underscores that while systems change is possible, it demands vision, targets, monitoring, and reporting, and harmonized measures and legal obligations will be key in achieving it.
It is against this background that negotiators gathering in Punta del Este, Uruguay, from 28 November to 2 December 2022, have begun their work on a legally binding instrument to address plastic pollution.
Options for the structure of a future treaty
Aligned with the elaboration of potential elements (UNEP/PP/INC.1/5), the document outlining broad options for the structure of the treaty does not define or discuss the specific content of the constituent parts. It defines “structure” as “the organization of the constituent parts of a legally binding instrument that enables those parts to function as a whole.”
The paper reveals that nearly all legally binding multilateral environmental agreements (MEAs) have a similar basic structure, with the core obligations and control measures taking significantly different forms. Each MEA, it notes, contains a preamble, introductory provisions, control measures, provisions related to implementation, provisions establishing treaty institutions to support implementation, provisions related to the further development of the treaty, and standard administrative provisions, or “final provisions.”
The document identifies two broad structural options:
- Specific convention, where the core obligations and some control measures appear in the body of the instrument. They may be “supplemented or elaborated upon” by additional control measures in one or more annexes, which “form an integral part of the instrument.” The report indicates the specific convention model is the most frequently used form of MEA.
- Framework convention, which includes the standard structure, categories, and provisions, but some – or all – of the control measures “appear in one or more separate protocols.” In this model, the convention and its protocols are legally distinct, with protocols usually adopted at separate conferences after the framework convention is adopted.
The paper notes that there is some overlap between these two options and that virtually all legally binding MEAs of global scope use annexes. Keeping the core obligations in the main body, while placing all or some of the details of the control measures in one or more annexes, the document explains, can help make the instrument “clearer and more manageable.”
If the decision is made to use the specific convention model, negotiators would need to decide on the content and level of detail to be included in the annexes. Annexes can be broadly categorized into:
- Annexes with supplementary technical information: A convention using annexes with supplementary technical information should fully elaborate on the control measures within the body of the convention. Examples of instruments that take this approach include: the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal; the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES); the Stockholm Convention on Persistent Organic Pollutants (POPs); and the Rotterdam Convention on the Prior Informed Consent (PIC) Procedure for Certain Hazardous Chemicals and Pesticides in International Trade. The document highlights that this approach is most frequently used when the various substances, products, or processes subject to an MEA “can be grouped into more or less broad classes that can be regulated under common control measures.” In the context of plastic pollution, macro- and microplastics, among others, could represent such classes.
- Annexes with substantive provisions: A convention using this approach may not require a significant description of control measures within its body. Examples of instruments with such annexes include the Minamata Convention on Mercury and the Stockholm Convention on POPs whose annexes on polychlorinated biphenyls, on dichlorodiphenyltrichloroethane (DDT), and on perfluorooctane sulfonic acid (PFOS), its salts, and perfluorooctane sulfonyl fluoride (PFOSF) specify substantive provisions on control measures.
- Annexes containing supplementary, or “umbrella” agreements. In rare instances, annexes may contain additional agreements as part of the broader convention. For example, the Marrakesh Agreement Establishing the World Trade Organization (WTO) includes additional agreements in its annexes, namely the General Agreement on Tariffs and Trade (GATT) and the General Agreement on Trade in Services (GATS).
Under the framework convention model, key details can be placed in legally distinct protocols, allowing problems “to be addressed in an incremental manner.” This approach, the document explains, can help: reduce uncertainty and produce agreement about relevant facts by, inter alia, requiring parties to submit national reports and encouraging research and assessments; and generate normative consensus by providing an ongoing forum for discussion and negotiation, building trust among participants.
Examples of MEAs using the framework convention model include the UNFCCC and its Kyoto Protocol, the Vienna Convention for the Protection of the Ozone Layer and its Montreal Protocol, and the regional Convention on Long-range Transboundary Air Pollution, applicable to Europe and North America.
The success of framework conventions, however, depends on the continued willingness of parties to adopt subsequent protocols. The paper notes that, in the context of plastic pollution, the framework convention model would accommodate the evolving science around plastics and their negative impacts on the environment and human and animal health, although this approach might not result in the level of consistency and ambition necessary to tackle the plastics problem as it depends on the goodwill of governments, which may change with each new election cycle.
As we wait for the outcome of the INC’s first meeting, read our guest article about plastic pollution science here.
Meeting documents, along with submissions from member States, major groups and stakeholders, MEAs, UN agencies, and unsolicited submissions can be found here.
Follow Earth Negotiations Bulletin (ENB) coverage of INC-1, including the 26 November multi-stakeholder forum.