By Fernando Muñoz Dominguez
Photo credit: Naja Bertolt Jensen
For more than a century, plastics have facilitated considerable advancements in modern society in a wide range of fields including electronics, aerospace, construction, food packaging, and sports. These advances have come at a high price, however, as plastics have been detrimental to human health, the economy, and the environment.
Humankind produces approximately 400 million metric tons of plastic waste, which contributes to two of the three issues the United Nations has identified as the triple planetary crisis: pollution and climate change. In response to the threat of plastic pollution, the “Global Plastics Treaty ,” with its final negotiation round in November 2024, aims to address these issues. This article examines the draft treaty’s key provisions, negotiation process, and the criticisms it faces, with special emphasis on the treaty draft’s failure to consider human rights dimensions of the plastics pollution crisis.
GENERAL CONSIDERATIONS AND TECHNICAL BACKGROUND
According to a recent study from the Minderoo-Monaco Commission on Plastics and Human Health, over 98 % of plastics are derived from fossil fuels, and plastic production is set to double by 2040 and triple by 2060. Plastics pollution causes significant environmental harm and its detrimental impacts occur throughout its lifecycle from extraction to disposal.
Domestic legal frameworks fail to adequately address the complexities of plastic pollution. Consequently, countries have taken what scholars consider to be the most difficult step in the creation of a treaty: the recognition that there is a need for international cooperation on an issue. In that context, 2022 marked the year when negotiations started to address the challenges of plastic pollution.
As of this writing, 170 countries have entered negotiations for the creation of a Global Plastics Treaty, which could be the “most significant deal relating to climate-warming emissions and environmental protection since the 2015 Paris Agreement.” [i]
NEGOTIATION PROCESS
The process began in March 2022 when the United Nations General Assembly adopted Resolution 5/14 [ii], requesting the formation of an Intergovernmental Negotiating Committee (INC) for the creation of an international legally binding instrument on plastic pollution, including in the marine environment. The first round of negotiations of the INC took place in Punta del Este, Uruguay, in November and December of 2022. During the meeting, more than 145 countries backed calls for global rules to stop plastic pollution. Subsequent sessions, INC-2 and INC-3, were held in June and November of 2023. In April 2024, the fourth rounds of negotiations, INC-4, occurred. The final round of negotiations, INC-5, is scheduled for November 2024.
An interesting aspect of the negotiating process is the presence of diverse stakeholders who have closely observed the drafting process. These include civil society, NGOs, and not surprisingly, corporations and lobbyists connected to fossil fuel and chemical industries. In this regard, legal experts emphasize the importance for the INC to prudently address corporate interests, and make efforts to avoid corporate greenwashing, which could undermine the treaty’s legitimacy.
CONTENT AND KEY PROVISIONS OF THE TREATY
The revised draft treaty prepared after INC-4, is divided into six main parts. After four extensive rounds of negotiations among the parties, only a few parts of the draft treaty have secured consensus and an apparent final text, while most of the parts of the draft treaty still include various versions on which countries will have to reach a consensus in the final round of negotiations.
Part I contains general provisions such as the treaty´s objective, scope, definitions, and principles governing it. Part II includes important provisions regarding the type of plastics such as primary plastic polymers, micro-and nano-plastics, and non-plastic substitutes. It addresses waste management and trade as well. Part III covers provisions related to financing, capacity building, and technical and technology matters.
Part IV addresses procedural aspects such as the National Implementation Plans, compliance, monitoring and assessment, and information exchange. Part V delineates the governance structure in charge of the treaty, including the main body, subsidiary bodies, and the secretariat. Finally, Part VI lacks a draft text, but establishes that the final provisions will be developed by a legal drafting group to be established by the INC.
One of the main provisions that still has no consensus is Part. I.2, Objective of the treaty, which currently presents two alternative options. The first option contemplates that the objective of the treaty is to “end plastic pollution … by 2040.” The second option, which seems less ambitious, proposes that the objective of the treaty is to “protect human health and the environment from the adverse effects of plastic pollution.”
The draft treaty contains tensions between more ambitious and less ambitious regulatory approaches in most of the key points of the revised draft treaty, such as (1) whether there should be an overall cap on plastics production or aa ban on specific plastics products, (2) the form and extent of financial assistance that should flow from developed countries to developing countries, (3) how plastic waste should be managed. Therefore, countries will have to decide between a harder language, that would require them to take significant actions and policies to reduce and cease plastic production, or softer language with general provisions that would not contain binding and concrete obligations. These tensions reflect many of the substantial and fundamental points that remain undecided leading up to the final round .
CHALLENGES AND CRITICISMS OF THE TREATY
The main criticism of the instrument is its limited focus on human rights issues. The problem of plastic pollution – and even its potential treatments and solutions — triggers important human rights concerns. However, the draft treaty’s approach to this issue has been characterized as “slender.”
Exposure to microplastics and nanoplastics violates the human right to a healthy environment, which was recognized by the United Nations General Assembly in 2022.[iii] According to the Earth Law Center , the human right to a sustainable environment is at risk “because of the increasing demand and production of plastics, which threatens the global climate system and human health in direct and less observable pathways.”[iv]
To illustrate, Human Rights Watch documented the negative impacts of plastic recycling in Turkiye, where communities living around recycling facilities suffer respiratory and skin ailments from pollutants and toxins emitted from plastic recycling. As such, the treaty should complement its recycling and waste management provisions with measures to prevent human rights and health impacts linked to recycling.
Currently, the treaty only contemplates the human right to a clean, healthy, and sustainable environment in the preamble and in Part 2.12 “Just Transition.” Neither of these sections addresses the issue directly, which reflects the weak human rights considerations of the draft instrument. Experts assert that the treaty should explicitly acknowledge or obligate the protection of the human right to a clean, healthy, and sustainable environment.[v] Additionally, human rights must be operationalized across the entire lifecycle of plastics, ensuring alignment with human rights in all provisions of the text.
Enforcement may present another challenge. If the “softer” provisions are adopted, the effectiveness of the treaty could turn out to be dependent on the voluntary compliance of each party, without numerical standards of any sort or complete phaseouts. Precedents such as the Montreal Protocol demonstrate that, although difficult to negotiate, numerical standards and phaseouts can be highly effective in combating an international environmental problem. Moreover, the draft treaty does not establish avenues for a cause of action in the event of non-compliance with the treaty.
Finally, there are no provisions relating to dispute resolution among the parties of the agreement, nor provisions that contemplate whether an individual could take actions against their government for non-compliance with the treaty. The treaty contemplates the creation of a committee that will review or facilitate compliance with the treaty; however, the proposed provisions stipulate that this committee should not function as an enforcement or dispute settlement body.
CONCLUSION
Countries have taken a significant step in recognizing the need to address the challenges of plastic pollution situation by creating the Global Plastics Treaty. Likewise, important advances have been made in the four previous negotiations round, including provisions relating to reduction or bans on plastic production, reduction or bans on harmful chemicals in the production of plastics, and waste management treatment.
Human rights issues are a pending issue of the treaty’s coverage, despite the various implications that plastic pollution has on them. Finally, on most of the key points, the exact content of the provisions remains to be decided in the final rounds of negotiation, with tensions between hard and soft versions of proposed language. The international community remains attentive to the ultimate text to be adopted by the negotiating countries.
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Bibliography
Valeria Volcovici, Global plastic treaty talks are happening. What do stakeholders want?, Reuters (Apr. 22, 2024), G.A. Res. 5/14, (Mar. 7, 2022).
G.A. Res. 5/14, (Mar. 7, 2022).
G.A. Res. 76/75, (July 26, 2022).
Earth Law Center, Advancing Ocean Justice in the Plastics Treaty, 12 (Feb. 2, 2024) [ARS5] .
Human Rights Center, “It’s As If They’re Poisoning Us” The Health Impacts of Plastic Recycling in Turkey, (Sept. 21, 2022).
UNEP, Draft Text of The International Legally Binding Instrument on Plastic Pollution, Including in The Marine Environment, UNEP/PP/INC.5/4, July 1, 2024.
Noreen O’Meara, Priorities in the UN Global Plastics Treaty Negotiations, ABA, May 6, 2024.
[i] Valeria Volcovici, Global plastic treaty talks are happening. What do stakeholders want?, Reuters (Apr. 22, 2024).
[ii] G.A. Res. 5/14, (Mar. 7, 2022).
[iii] G.A. Res. 76/75, (July 26, 2022).
[iv] Earth Law Center, Advancing Ocean Justice in the Plastics Treaty, 12 (Feb. 2, 2024).
Fernando Muñoz Dominguez
Fernando Muñoz Domínguez is an Ecuadorian attorney with a Master of Laws (LL.M.) in International Environmental Law from The George Washington University. His litigation experience in Ecuador encompassed Environmental, Administrative, and Constitutional Law. Currently, his primary focus is on U.S. Environmental Law and International Environmental Law issues.
