Another round of plastics negotiations, another disappointment. The negotiations, now in their third year, are already in overtime. They were supposed to wrap up last December in Busan, South Korea, at the fifth session of the Intergovernmental Negotiating Committee on plastic pollution (INC-5.1). But the meeting ended with delegations still far apart, so a resumed fifth session (INC-5.2) was held in Geneva in August.
A new year and a new venue, however, failed to produce a different outcome. Both texts proposed by the INC Chair in the final days of the session as “balanced” outcomes were rejected and the session petered out in disarray, with the way forward unclear.
Why did INC-5.2 fail? The answer is uncertain, but is crucial in thinking about next steps. Was an agreement within reach and the session failed because of bad leadership and management? If so, with a different chair, a further resumed fifth session – INC-5.3 – might produce a different result. Or did INC-5.2 fail because the bottom lines of states do not overlap sufficiently for a consensus outcome? In that case, countries interested in an ambitious plastics agreement need to decide whether to proceed on their own, either by pressing for a vote at a future INC session (or possibly in the UN Environmental Assembly or General Assembly) or adopting an agreement as a coalition of the willing.
Issues, issues, everywhere
The plastics negotiations are mired in myriad issues. States generally agree that a plastics agreement should include provisions on plastic products, plastic product design, releases and leakages into the environment, waste management, cleanup of existing plastic wastes, national action plans, reporting, and effectiveness evaluation. But there is little agreement about how to address these topics or what else to include in the instrument.
The three “crunch” issues – which will ultimately require a political resolution – include:
– Scope: Should the agreement be limited to downstream issues such as product design, emissions/releases of plastics, waste management, and cleanup of existing plastic wastes? Or should it encompass the entire life cycle of plastics – including primary plastic production and the hazardous chemical additives used in plastics?
– Finance: Who should provide finance, how much, to whom, for what purposes, and through what mechanism(s)?
– Decision-making: Should the agreement require consensus decision-making or allow parties to adopt amendments and decisions through less-than-consensus voting rules?
In addition, several general questions cross-cut the many substantive issues in the negotiations:
– Top-down vs. bottom-up: To what degree should the agreement prescribe global rules or be country driven, giving states flexibility to craft their own approaches?
– Legal bindingness: To what extent should its substantive provisions be formulated as legally binding obligations (“shall”) or as recommendations or permissions (“should” or “may”)?
– Differentiation: How should the principle of common but differentiated responsibilities and respective capabilities (CBDR) be reflected, if at all, in the substantive provisions of the agreement?
The lay of the negotiations
With numerous issues on the table, countries differ along many lines. The primary division is between the High Ambition Coalition (HAC) and the Like-Minded Group (LMG). On one side, the HAC – which includes more than seventy mostly European, African, Latin American, and small island developing states – seeks an agreement that:
– Addresses the entire life cycle of plastics, from production to end-of-life disposal and cleanup.
– Prescribes detailed global rules, including a global goal to limit primary plastic production, a commitment to phase out harmful plastics products and chemical additives, and standards for product design, extended producer responsibility, waste management, and remediation.
– Formulates these international rules as legally binding obligations.
On the other side, the Like-Minded Group – which includes the Arab Group, Iran, and Russia, among others – seeks an agreement that:
– Does not address primary plastic production or chemical additives and instead focuses on downstream issues such as waste management.
– Gives states flexibility to define their own policies in national action plans.
– Imposes few legal obligations and is instead largely advisory in character.
– Protects against unwanted changes by requiring consensus decision-making.
Both the HAC and the LMG are loose coalitions. Within the HAC, for example, Japan and Korea have not joined calls for non-consensus decision-making. In the run-up to INC-5.2, Norway and Rwanda, the co-chairs of the HAC, issued quite conciliatory ”reflections” on the process, but other HAC members are less compromising.
The LMG is an even less clearly defined group. Saudi Arabia, Kuwait, Iran, and Russia are core members. India’s membership is less definite, although at INC-5.2 it aligned itself with the LMG statement by Kuwait. China was listed as a member in the LMG statement at INC-3, but has been cagey, making few textual proposals and taking somewhat different lines at different sessions. Brazil, likewise, has positioned itself somewhere in the middle. The United States formerly did so as well, but with the change in administration, it echoed the LMG at INC-5.2 in opposing the inclusion of a provision limiting plastic production
A brief recap of INC-5.2
Like previous sessions, much of INC-5.2 was spent on textual negotiations in a variety of more or less formal settings (contact groups, informals, informal-informals). But, as at previous sessions, states primarily used these meetings to restate national positions and reintroduce their proposals into the text, rather than seeking to negotiate compromises. The net result was to take the relatively streamlined text that the Chair had introduced at the end of INC-5.1 and load it up with alternatives and brackets, first in an “assembled text” issued at the end of the first week and then in the various contact group drafts issued during the second week.
When negotiating groups are spinning their wheels, one alternative is for the chair (usually with the secretariat’s help) to issue a text that cuts through the thicket of brackets to identify a landing zone that everyone can accept. The INC Chair, Ambassador Luis Vayas Valdivieso of Ecuador, introduced two such texts in the final days of INC-5.2, the first on August 13 and the second on August 15. The August 13 text leaned towards the LMG approach, with no provisions on plastic production or chemical additives, few global standards, and many provisions formulated in hortatory rather than legally binding terms. Predictably, Saudi Arabia called the text a “milestone,” while members of the HAC rejected it outright as a basis for negotiations, forcing the Chair back to the drawing board.
By this point, time was running out. The Chair issued a second proposed text shortly after midnight on the final night, which moved in the direction of the HAC. What its fate might have been had there been time for further negotiations is unknown, because time ran out. The final plenary began at about 6 AM and dragged on for several hours. Numerous countries took the opportunity to express their disappointment in the process, before the Chair finally put delegations out of their misery by adjourning the session. The upshot was that neither of the Chair’s two proposals was endorsed by the INC as a basis for future work. If and when the INC resumes, it is thus unclear what text will serve as the starting point for further negotiations.
Accounting for failure
Why did INC-5.2 fail to deliver an agreement? In an earlier post, I explored some of the reasons why the plastics negotiations have proven so difficult, including:
– The enormous economic stakes involved.
– Widely divergent national interests.
– An unclear and overly broad negotiating mandate, which created unrealistic expectations.
– Inadequate negotiating time.
In addition to these general factors, poor leadership and management arguably have played a role. Among the many miscues:
– INC-5.2 began with the parties still as far apart as when INC-5.1 ended, suggesting that the eight months between the two meetings had been wasted.
– Much of INC-5.2 was spent on unproductive textual negotiations in contact groups and informals. According to one delegate, “constructive conversations” among a small group of key countries did not take place until the final day.
– The Chair’s textual proposals reportedly did not harvest the limited progress made in the contact groups and informals.
– The Chair mismanaged the time, issuing his revised textual proposal so late that there was no time for consideration.
– Confusion reigned supreme in the final days, with participants at loose ends, “restlessly scanning for some tidbit of information that would make sense of it all.”
Given these missteps, it is easy to put the blame for INC-5.2’s failure on the Chair.
But would better leadership have produced a different result? Not necessarily. The answer depends on whether there is any overlap between the bottom lines of the various sides. If not, then there is no “zone of possible agreement” and, regardless of who leads the INC process, it will not be able to produce a consensus outcome.
Looking ahead
Given the breakdown at INC-5.2, how should states proceed going forward? The default option is to continue down the same road, working towards a consensus outcome. Alternatively, the HAC could seek a vote or proceed as a coalition of the willing.
The consensus approach could, in theory, involve compromises by both sides. International environmental law has developed an extensive toolbox to bridge national positions.
More likely, however, a consensus outcome would skew towards the LMG position, since it seems to be in the stronger negotiating position than the HAC. On the one hand, the LMG has little incentive to make concessions. A failed negotiation would leave the status quo in place, allowing its member states to continue producing plastics. From its perspective, no agreement would be preferable to an agreement that prescribes restrictive global rules. The LMG has an incentive to compromise only to avoid being blamed for a breakdown in the negotiations. This reputational interest in avoiding blame may influence the LMG at the margins, but is likely too weak to induce concessions on core issues such as production or voting. In contrast, high ambition countries have a much stronger interest in achieving an agreed outcome. For them, failure to do so would negate their victory in launching the negotiations three years ago.
A consensus outcome based on the LMG approach, perhaps along the lines of the Chair’s August 13 text, would be a bitter pill for the HAC to swallow. But even though many high ambition states summarily rejected the Chair’s August 13 proposal at INC-5.2, they may not maintain this stance to the bitter end, if it becomes clear that the choice is not between a strong or a weak agreement, but rather between a weak agreement or no agreement. After all, any agreement, even a weak one, would keep the plastics issue in the public eye. The agreement’s annual meetings of the parties would provide a focal point for advocacy on the plastics issue. The agreement might provide at least some financial assistance to developing countries for waste management and cleanup. And it could potentially be strengthened over time through amendments or protocols.
In contrast, if the negotiations end in failure, this would be another blow to multilateralism, at a time when multilateralism can least afford it. Reviving the plastics issue in a global forum like UNEP would be difficult and take time. Meanwhile, plastic pollution would continue to accumulate.
For those worried about plastic pollution, a weak agreement would be worse than no agreement only if it or prevented states from doing things that they otherwise could do – for example, if it set a ceiling on national action, rather than a floor. For this reason, the HAC’s ultimate red lines might focus, not on including provisions regulating production or chemical additives, but rather on excluding provisions that could limit national action. The HAC might also prioritize including design elements that facilitate the future evolution of the agreement, such as a science committee, periodic reviews of effectiveness, and a majority voting procedure for adopting and amending annexes (which in most agreements, requires only a 2/3 or 3/4 vote, not consensus).
In considering the shape of a consensus outcome, China and Brazil are potential wild cards. If China aligns with the LMG, then this would likely tip the scales in the LMG’s favor. But if China and Brazil actively push for compromises, this might pressure the LMG to make concessions.
Of course, some (or many) high ambition countries may be unwilling to agree to a plastics instrument they regard as inadequate. Or they may miscalculate and think that if they hold out for an ambitious agreement, the LMG will ultimately fold. If so, high ambition countries have two potential alternatives, not involving consensus.
First, they could introduce an ambitious instrument and press for a vote. To be successful, a majority would first need to support a procedural decision to allow voting on issues of substance; then, a two-thirds majority would need to vote to adopt the agreement.
Would a majority of states support voting and, if so, would two-thirds vote in favor of an ambitious agreement? More than 100 countries have associated themselves with one or more HAC statements, but this is a far cry from voting in favor of an agreement opposed by the United States, India, Russia, Saudi Arabia, other oil-producing states, and potentially China. The procedural vote on whether to allow substantive voting would itself be highly controversial. At INC-2, Saudi Arabia, India, China, and Brazil, among others, threatened to walk out if voting were allowed and the issue consumed much of the session, with no resolution. In retaliation for voting, members of the LMG might threaten to block work in other fora. Fearing this blowback, some countries that support an ambitious agreement might not support voting. So it is not obvious whether, if the HAC called for a vote, it would get majority support.
Alternatively, the HAC could go outside the INC process and proceed as a coalition of the willing. The model here is the Ottawa Land Mines Convention, which 97 states adopted in 1997 out of frustration with the slow pace of progress in the negotiations under the Convention on Conventional Weapons. The Ottawa Convention now has 164 parties. Even though none of the states that still use anti-personnel land mines have joined, the Convention has arguably influenced them to reduce their use of anti-personnel mines.
The question regarding both of these non-consensus approaches is whether a plastics agreement with limited participation would be effective. If the agreement did not include China, the United States, India, Russia, and other major petrochemical states, would it have a significant impact in reducing plastic pollution, or would it be primarily performative?
The answer to this question is critical not only to the viability of non-consensus approaches in curbing plastic pollution, but also to their credibility as negotiating levers. Currently, the LMG holds most of the cards in the INC. But if the HAC could credibly threaten to adopt an agreement that would impact LMG states economically, whether or not they participated, then this might change the negotiating dynamic. The HAC would now hold an important card: it would not need to capitulate in order to get something rather than nothing, since it would have a credible alternative if the negotiations failed.
Conclusion
Insanity has been defined (although apparently not by Einstein) as doing the same thing over and over again while hoping for a different result. If a resumed session of the INC is to avoid insanity – if it is to have a different result from INC-3, INC-4, INC-5.1, and INC-5.2 –, then the time between now and then needs to lay the groundwork for success.
Most importantly, the HAC needs to come up not just with negotiating positions, but with a negotiating strategy. Its members cannot afford to simply continue repeating their desired outcomes; they need to make hard choices about less-than-perfect alternatives.
Thus far, high ambition countries have not shown a willingness to abandon the desideratum of consensus and either press for votes or proceed as a coalition of the willing. If this reluctance continues, they need to face up to a difficult choice: are they prepared to accept an LMG-oriented text like the Chair’s August 13 proposal, if necessary, to avoid failure? Or would they rather have the INC process crash and burn?
Alternatively, if high ambition countries are prepared, as a last resort, to proceed with a non-consensus approach, they need to begin preparing for that contingency. Among the questions they need to consider:
– At what point should they give up on a consensus outcome and pursue a non-consensus alternative? What is the minimum they could accept, if the alternative were a non-consensus agreement the LMG boycotted?
– Would it better to call for a vote in the INC or proceed outside the INC as a coalition of the willing?
– Would a majority in the INC support voting?
– Should they begin taking steps now in the direction of a non-consensus approach, to make the threat of plurilateral action more credible? Or might such a threat have the opposite effect, leading the LMG to bring the INC to a standstill on the grounds the negotiations had been poisoned?
In any event, intensive efforts should be undertaken before the next round of negotiations to bring the various sides together to explore whether there is any room for compromise – for example, on the basis of either the Chair’s August 13 or 15 text. Compromises on the crunch issues would require a political deal at a more senior political level. If the Chair is unable or unwilling to engage in high-level shuttle diplomacy, then a state (or NGO) perceived as relatively neutral by all sides – possibly Japan and/or Singapore – might try to play a convening role.
For the past two years, the INC process has drifted back and forth, with little forward movement. If the negotiations are to succeed, those who wish to negotiate a strong agreement need to be more proactive. They need to chart a realistic path forward and take control of the wheel.
Image: Creative Commons, Giant Plastic Tap art fixture by Benjamin Von Wong at the INC-4 Global Plastic Treaty Negotiations in Ottawa, Canada.
