By Daniel Bodansky and Maria Ivanova
Each year, plastic pollution grows worse, trashing the ocean, harming wildlife, and threatening human health. The UN Environment Assembly (UNEA) launched negotiations on a global treaty to end plastic pollution in March 2022, with the goal of concluding an agreement by the end of 2024. However, efforts to finalize an agreement stalled last month in Busan, Republic of Korea. After two years and five rounds of talks, countries still do not even agree on the treaty’s scope.
The High Ambition Coalition, including many European, African, and small island States, calls for bold measures to “turn off the tap” of plastic production and tackle pollution at its source. In contrast, the Like-Minded Group, led by petrostates like Saudi Arabia and the Russian Federation, argues that the treaty should focus primarily on downstream response measures, particularly waste management. The latest session of the Intergovernmental Negotiating Committee (INC) refined the draft text but failed to bridge the competing visions. When negotiators reconvene in mid-2025, they must make meaningful progress. What options do they have?
Consensus or bust
In part, the answer will depend on whether the adoption of an agreement can be made by a majority vote or requires consensus. The INC’s provisional rules of procedure allow decisions to be made by a two-thirds majority vote if consensus proves impossible. However, the ‘like-minded’ argue that the rule allowing majority voting was never officially adopted and insist on consensus.
Consensus decision making seeks to avoid conflict by requiring agreement among all participating parties. It has become the default rule in many environmental treaties and is the manner in which recent multilateral environmental agreements (MEAs) have been adopted. In the plastics negotiations, a consensus approach would likely produce a treaty text much closer to the ‘like-minded’ than the high-ambition position. At best, artful wordsmithing might achieve compromise formulations that reference key issues, but in a manner sufficiently vague to pass muster with the ‘like-minded.’ Alternatively, the ‘ambitious’ may eventually cave and accept an agreement limited to downstream waste management issues on the theory that something is better than nothing, particularly since even a comparatively weak agreement can potentially be strengthened over time and be supplemented by stronger domestic measures.
Rather than accept a watered-down agreement, a coalition of ambitious states could apply the provisional rules of procedure and attempt to adopt an agreement by majority vote, over the objections of the ‘like-minded.’ Alternatively, states wanting an ambitious treaty could proceed outside the INC and the UNEA and convene a diplomatic conference. This happened in the Ottawa Landmines Convention, adopted by a coalition of the willing frustrated by the slow pace of negotiations on landmines in the official UN process. Either approach would alienate not only petrochemical-producing states, but also big developing countries such as China and India and possibly some developed states such as the US and Japan. A treaty that lacked their participation would have limited effectiveness, but could also demonstrate that bold action is possible and establish norms that gradually influence non-participants.
Is there a middle ground?
States interested in a strong plastics agreement thus seem to be on the horns of a dilemma: settle for a least-common-denominator outcome that falls short of their goals – or go ahead on their own with an ambitious agreement that the biggest plastic producers reject.
But a middle ground may be possible that promotes both ambition and participation, by allowing states to set off in a common direction but in different ways and at different speeds. For example, the agreement could:
- Allow states to join as “associated parties,” subject to only some of the obligations of full treaty parties;
- Allow states to choose among different options to achieve a regulatory purpose, as in the Minamata Convention on Mercury; or
- Explicitly allow parties to take stronger domestic measures, like the Rotterdam Convention establishing a prior informed consent (PIC) procedure for trade in hazardous chemicals and pesticides.
Perhaps the most promising blueprint for balancing ambition and flexibility can be found in the International Convention for the Prevention of Pollution from Ships (MARPOL). It combines a mandatory core agreement with optional annexes. The core agreement addresses definitions, jurisdiction, and implementation. The annexes detail controls on specific types of vessel-source pollution.
Over time, MARPOL’s segmented structure has allowed more countries to join and deliver on more obligations. Initially, MARPOL had five annexes, two mandatory (on oil pollution and chemicals carried in bulk) and three optional (on chemicals carried in packaged form, sewage, and garbage). However, many states were reluctant to accept the annex on chemicals carried in bulk, so in 1978, states amended MARPOL to make the bulk chemicals annex optional. That allowed enough states to ratify the agreement to bring it into force. Subsequently, parties adopted a sixth annex on air pollution from ships, including its contribution to climate change.
What would a MARPOL-like plastics agreement look like? Its core elements might include provisions on general matters, including the treaty’s objectives and principles, institutions, means of implementation, and amendment procedures. Regulatory measures addressing the various stages in the life cycle of plastics could be detailed in annexes on supply, chemicals and products of concern, waste management, emissions, and legacy plastic pollution. The annexes on issues with broad consensus, such as waste management and product design, could be mandatory, while those limiting primary plastic production and regulating hazardous chemical inputs could be optional.
From deadlock to action
Would the Like-Minded Group be willing to accept a MARPOL-like agreement? Possibly, if the elements to which they object – such as limits on primary plastics production – were addressed in optional annexes they could decline to join. That would limit the treaty’s effectiveness, but it would still go further than a watered-down agreement that did not address plastic production and other upstream issues at all.
Of course, even if states were allowed to pick and choose which annexes to accept, the Like-Minded Group might still try to block adoption of annexes on upstream issues, for fear that action by others to limit plastic production would harm them economically. But declining to accept an obligation is one thing; trying to prevent others from taking action is quite another. If the Like-Minded Group attempted to use the consensus rule to tie the hands of more ambitious states, by objecting to the inclusion of optional annexes, this would leave high-ambition states with little alternative to proceeding on their own, either by calling for a majority vote or going outside the INC process.
Negotiations in Busan may have stalled, but they also revealed potential pathways to progress. By embracing flexibility and innovative approaches, negotiators can craft a treaty that addresses one of the world’s most urgent challenges.
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Daniel Bodansky is Regents’ Professor, Sandra Day O’Connor College of Law, Arizona State University. Professor Bodansky has been attending the INC sessions as an observer for the United Nations Foundation
Maria Ivanova is Director and Professor at the School of Public Policy and Urban Affairs, Northeastern University. Professor Ivanova has been attending the negotiations since their start in March 2022 on the delegation of Rwanda, on the delegation of the International Science Council, and as head of the delegation of Northeastern University.
