A Tale of Two Treaties

It was the best of times, it was the worst of times, it was the age of wisdom, it was the age of foolishness, it was the epoch of belief, it was the epoch of incredulity, it was the season of Light, it was the season of Darkness, it was the spring of hope, it was the winter of despair, we had everything before us, we had nothing before us, we were all going direct to Heaven, we were all going direct the other way […]

Charles Dickens, A Tale of Two Cities

Almost as soon as the sun had set on negotiations in Nairobi on a new UN Plastics Treaty, the caravan was already moving on to Dubai, where the 28th Conference of the Parties (COP) of the UN Framework Convention on Climate Change (UNFCCC) was held. The words above, Charles Dickens’ description of late eighteenth-century Europe (written in the mid-nineteenth century) in his ‘Tale of Two Cities’, are partly a reflection of the contradictions presented by the scientific progress occasioned by the Enlightenment. Yet by reaching from the past to ‘the present period’, those contradictions present in society during the French Revolution are given contemporary relevance. They could hardly be more apt today.

The UNFCCC was signed in 1992. Its Objective – Article 2 – is:

The ultimate objective of this Convention and any related legal instruments that the Conference of the Parties may adopt is to achieve, in accordance with the relevant provisions of the Convention, stabilization of greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system. Such a level should be achieved within a time-frame sufficient to allow ecosystems to adapt naturally to climate change, to ensure that food production is not threatened and to enable economic development to proceed in a sustainable manner.

Given the Objective of the Paris Agreement (adopted by 195 countries in 2015) and the latest Emissions Gap Report from the UN, it no longer seems premature to say that the UNFCCC has failed to meet its Objective. That doesn’t, of course, mean that all endeavours to reduce the extent of climate change should cease. Far from it: the language of net zero, which has the unfortunate effect of suggesting that all that matters is a destination and a date, tends to underplay the significance of how the trajectory of emissions reduction - which hopefully will occur rapidly – will determine the extent of planetary warming, and the frequency and intensity of climatic extremes which are set to follow.

Thousands of delegates and non-delegates (estimated at over 100,000 people) convened in Dubai, some to negotiate, some to push, perhaps embolden, negotiators in one way or the other (closer to heaven, or moving them ‘the other way’). Observers who understand the threat posed by climate change (and who accept that ‘dangerous anthropogenic interference with the climate system’ is already with us – not least, because they’ve observed it, or have detected it through analysis of empirical data) once again described this in the same way as they did predecessor COPs over the last decade: the ‘last best chance’, or similar, to save the planet. The ‘eleventh hour’, ‘seconds before midnight’: do we have time enough left to drown our sorrows at the bar in the last chance saloon?

However optimistic attendees were, they will have know that they would probably be in much the same situation at COP29, still with the hope that systemic change will follow, but with the likely promise only of more pledges - which evidence suggests are unlikely to be respected – and more tussles over words in texts, and with nothing secured other than (if anything) further incremental changes. Be stubbornly optimistic, if you wish, but what is it that you are being stubborn ‘in the face of’, if not the empirical evidence? Other adjectives are available for such a disposition.

The title of the latest Emissions Gap Report from UNEP – ‘Broken Record’ – was well chosen, and the subtitle – ‘Temperatures hit new highs, yet world fails to cut emissions (again)’ – aptly conveys the impression of a world which shows itself manifestly unable to collectively agree – and that is how conventional wisdom has held that progress is most likely to be delivered - how to avoid the dangers whose outlines have already revealed themselves, but whose full magnitude is the subject still of some uncertainty. Those at COP28 – and all the COPs before - had the power to choose the colour of the paint that will fill in that outline, but the palette from which their choice must be made becomes more limited with each passing day.

Time, then, to speak openly to the elephant in the room (better now than in 5 years’ time): the UNFCCC has failed to meet its Objective. But if not the UNFCCC, then what? And unless one has a superior alternative, dismantling the whole system would be irresponsible.

Understanding what has happened, and why, might assist us, if only to help us comprehend the range of the plausible counterfactuals that were available to us in the past, and the menu of options which might be available in future. What could have happened differently, and how might that have affected the outcome, either for better or for worse? How does that reflection affect how we see the future? And as negotiations on a UN Plastic treaty continue, what are the pitfalls that might be avoided?

We could point to the articulation of the initial Convention: no binding targets for anyone, allowing the problem to worsen steadily by the year, until the most precious resource of all – time – is about as ‘up’ as anyone might reasonably have expected back in 1992. It is sobering to think that since 1992, as far as can be discerned, more carbon dioxide has been emitted to the atmosphere than in all the years prior to the Convention being drafted. Because the effect of carbon dioxide is cumulative, global temperatures have more than doubled as a result. We now have to do more or less everything possible within a generation to prevent temperatures from rising much beyond the 1.5 degrees C above pre-industrial levels, and we have to do as much as possible as quickly as possible. The sole remaining reason to maintain the deceit that ‘one-point-five’ is ‘still alive’ is, perhaps, to preserve the integrity of a rhyme. Only in a fantasy world dominated entirely by regimes utterly committed, above all else, to act with undistracted urgency to address climate change is such an outcome remotely possible from where we stand today. The data from 2023 suggests that 1.5 degrees C is almost upon us.

We could also point to lobbying in the process itself, and the campaigns of lies, half-truths, and misinformation used to stall progress, not least in developing a shared understanding of the fact that there is a gun that has been smoking for some time. Whilst such a view can now be expressed in official documents approved for publication by the Intergovernmental Panel on Climate Change (IPCC) (it wasn’t always the case), and whilst these themselves carry messages in a somewhat more sanitised form than might be warranted, the issue has become a popular one for opinion writers to engage with in the media (all of which is, by my reckoning, ‘social’). What is it (surely, it isn’t ‘just’ money?) that leads some otherwise intelligent people to take it upon themselves to persuade others that not only are those who want meaningful action to be taken infringing upon liberties to an excessive extent, but that the future will be no worse if we just ‘keep calm and carry on’? Liberalism has never been an especially edifying, or well-articulated political philosophy. In its most individualistic forms, it is empty of moral conviction, and when blended with a dash of nationalism, the result is the pursuit of national self-interest largely purged of ethical content.

Credit to Derrick Milimo

Others will point the finger at ‘our leaders'. Citizens vary in the extent to which they have the luxury of a meaningful vote. Even for these citizens – and I am one - the value of that vote may be limited. As John Dunn has cogently argued, western so-called democracies are effective as a means for getting rid of leaders who have fallen out of favour, but they exert limited influence over the quality of their replacements. The motto ‘liberty, equality and fraternity’ that first emerged in the period about which Dickens was writing, and which became a principle of the third republic after the 1848 Revolution, can hardly be said to constitute guiding principles of most existing political leaders. Instead, leaders of democracies know that their longevity is best assured by appealing to the self-interest of those who back them (financially), who give them a favourable hearing (in the media), and who vote for them, and by using their powers of patronage with (manipulating procurement, corrupting existing processes, skewing appointments - all can be the source of bounties of either financial or reputational nature): the guiding political philosophy is egoism. Those who lead nations where voting either does not happen, or where it is at best an illusory phenomenon (and for some, a dangerous sport), are inclined to worry only about shoring up the basis for their power. If, even in most western democracies, it cannot be guaranteed that a leadership candidate will commit to a path that comes close to doing what needs to be done vis a vis climate change, then we might consider the roles of money and media in creating a milieu in which the citizens of democracies do not consider, in sufficient numbers, the problem to be so serious as to make that a major consideration in determining who it is that they will vote for.

In democracies, the problem isn’t (only) political masters: it’s (also) us.

Outside of countries where voting has some impact, the philosophy of egoism shrinks inwards to reflect the self-interest not of a given range of actors, but that of the incumbent leader, fettered only by their competence in asserting and exercising control over the levers of state power (notably, the organs of state security and policing, and the judiciary). 

In that context, the 28th United Nations Conference of the Parties (COP28) witnessed leaders behaving like, well, like leaders of nations. Zero-sum nationalism – the defence of national interests, represented by domestically expressed egoism – is the basis from which decisions are considered and made. That is a difficult starting place from which to successfully conclude negotiations about how nations will work together to solve a problem which affects all humanity and all other living organisms with whom we share the planet. Our global politics is the politics of nations, whether we like it (and there are few enough reasons to like it at present) or not. Nations are very far from ‘united’: unless a political architecture can be defined and articulated which unites nations, in spite of their manifest differences and desires to be dis-united, to deal collectively with global environmental problems that will affect all life, then the outlook is worryingly grim. This is an urgent project, but one which has so far yielded little to give us much by way of encouragement that we will rescue ourselves from our current predicament. We now need to achieve the political equivalent of collectively crafting a parachute, even as we fall with the admirable predictability of gravity ever closer to the floor.

Hardly surprising, then, that the recently completed third meeting to negotiate a Plastics Treaty, under the UN’s Intergovernmental Negotiating Committee, ended in a state where members could not even agree to agree the programme of inter-sessional work to be undertaken between the Nairobi meeting, and the next meeting in Ottawa. It’s less surprising still, given that the cast of players on the stage is much the same as in the case of the climate change negotiations (albeit the numbers present are less impressive), that discussions around reducing production of plastics open up fairly obvious and familiar fault-lines. The principal feedstock for plastics is oil: discussion about reducing polymer production predictably gives rise to a degree of polarisation of nations along lines of their oil reserves, and with a familiar line-up of oil-based businesses engaged in lobbying against actions that might constrain production. If it’s taken 28 COPs to get – well, almost – to a point where nations could agree to do what obviously needs to be done, what hope as we embark on a similar journey to address the no less ubiquitous problem of plastic pollution?

It probably does not help that the Treaty, for which the negotiating mandate is to address plastic pollution. The term ‘plastic pollution’ is yet to be defined in the negotiations so that the objective of the Treaty is effectively ‘yet to be defined’. Nonetheless, the initial Zero Draft produced by the Secretariat did set out a range of measures for consideration at the Nairobi INC-3 meeting. This included a measure under which Parties would commit to reduce production of plastic. That measure has a slightly more tenuous link to the objective (partly because it is yet-to-be-defined) than the phasing out of fossil fuels has to the objective of constraining global temperature increase. It seems likely to be no more straightforward to agree.

At the root of the problem in both cases is the fact that in the INC negotiations and in the COP process, Members (INC) and Parties (UNFCCC / Paris Agreement) retain an effective right of veto over any significant decisions. In the INC process, the Interpretative Statement that followed the Paris meeting reads:

“The intergovernmental negotiating committee understands that, based on discussions on the draft rules of procedure for the intergovernmental negotiating committee, there are differing views among intergovernmental negotiating committee members on rule 38, paragraph 1, and its reflection in the report of the intergovernmental negotiating committee on the work of its first session. Therefore, the provisional application of rule 38, paragraph 1, of the draft rules of procedure has been a subject of debate. In the event that rule 38, paragraph 1, is invoked before the rules are formally adopted, members will recall this lack of agreement”

Rule 38 paragraph 1 would have allowed for decisions to be based on a two-thirds majority where attempts to reach agreement by consensus had been exhausted. Since the rules have not been formally adopted, any Member might be considered to have a veto over the formulation of a Treaty. The scene is being set, therefore, for those seeking a Treaty which urges more significant action to be disappointed, thwarted by vetoes exercised as a result of inability to reach agreement on rules of procedure.

Note that under both processes – affecting climate change and plastics – the emphasis has been placed on ‘production’. In the climate space, the Guidelines for reporting emissions to the UNFCCC are based around reporting emissions which occur in the territory of the Party concerned. As regards plastics, the first measure in the Zero Draft was focused on constraining production. You could be forgiven for thinking that even in our inter-dependent world, these approaches were based on a presumption that most nations are autarkic in nature. The case for producing lots of goods and services, including ones made from plastics, rests on their being a demand from consumers (else why bother?). Why are we not reporting greenhouse gas emissions based on what we consume (rather than what we produce)?

The recently issued analysis from the UK’s Office for National Statistics estimates emissions based on three metrics. One of the three is effectively what is reported to the UNFCCC (territorial emissions). Another is an attempt to understand emissions associated with consumption (consumption / footprint emissions). The data suggests that if the latter were used as a basis for reporting, UK emissions would have to be increased by roughly 50%, or to put it another way, we are only reporting two-thirds of our collective impact on climate change.

Source: UK Office for National Statistics

The story regarding plastics is not dissimilar. If we want to reduce use of plastics, why should the onus be on producing countries to reduce production by businesses within their territory? The British Plastics Federation suggests that the UK ‘currently produces around half as much polymer as it consumes (in 2020 this was 1.67m tonnes produced vs 3.3m tonnes consumed) and is therefore heavily reliant on imports of raw material.’

Source: British Plastics Federation

Although the UK exports plastics and plastic products of significant value, data from HM Revenue and Customs indicate that the value of its imports are about 1.7 times the value of its exports. The divergence between production and consumption seems, therefore, not dissimilar to that regarding emissions of greenhouse gases.

Why are we not focussing on our consumption of plastics?

“we were all going direct to Heaven, we were all going direct the other way”

So what next?

As country negotiators survey the New Year, the latest Zero Draft text from the UN’s INC has just landed. It is a difficult read, partly because the text includes a gamut of permutations for each of a range of measures, many of which are related to one another, leading to a multiplicity of possibilities. The success of the ‘do nothing’ lobby, though, is revealed principally by the fact that against all but six of the Measures and Sub-measures in the original Zero Draft, there is an “Option 0” which reads ‘no provision on this matter’. Three of the six measures / sub-measures for which there is no ‘’Option 0” were measures that even in the original Zero-draft would not have committed would-be Parties to anything specific. The other three included ‘non-zero’ Options which were already likely to lead to no firm commitment from would-be Parties, leaving the extent of action to be determined by each Party within a National Plan. I’ve previously argued that would be a poor outcome. The part of the Zero Draft that included a proposal for a plastic pollution fee now includes a suggested ‘alternative’ to the fee proposal of ‘No text’.

This process might quickly begin to look like an enormous waste of time and effort if a number of UN Member nations are minded to act in such a way to undermine the effectiveness of a Treaty from the outset. The experience in the domain of climate change is sobering: if Treaties are agreed with nothing binding within them, then no one is bound to anything. In any event, the UN is disinclined to penalise those who fail to do what might be required of them, preferring a more ‘facilitative’ approach. Who’s up for another 30 years of COP-ping?

Can the deadlock – of zero-sum, nation-based negotiation – be broken? What prospects are there for nations to work constructively together? In the area of climate change, there is enough that is wrong about the basis for negotiating (how much a nation reports that it emits – what is its contribution to the problem?) to suggest that starting again – in a different way - might be no bad thing. We have little enough to show for 28 COPs, and the UNFCCC has evidently failed to meet its Objective. Like a bloated infrastructure project, only ‘optimism bias’ (naivete?) and the already ‘sunk costs’ involved in painfully wringing limited progress from 28 COPs prevents us from cutting our losses, alongside a sense, perhaps, of, ‘what else is there?’

Nations who profess to understand the magnitude of the issue may need to have the courage of their convictions, and a display of unbridled optimism might not be the best way to convince a wavering polis that some rapid and profound changes are needed. Instead of screaming at fossil fuel producing nations to ‘phase out production’ - as though production is to be blamed for fueling demand – the demand from consumers needs to be rapidly diminished. Turning up in Dubai to castigate oil-producing nations, even whilst simultaneously taking hopelessly inadequate (not to mention, counterproductive) measures to limit demand in one’s own country may help to deflect blame, but it does absolutely nothing to solve the problem. Getting words like ‘phase-out’ into a Treaty without a commitment as to the planned trajectory for phase-out is useless. If the world is planning to wait for action by producers to cut off supply before we act to reduce demand, then we are allowing the pace of change to be dictated by those who least want to see it. No world records for sprinting will be set by plodding in the slipstream of the tortoise.

A system which focuses on demand can be structured around policies which deliver that reduction, including – crucially – border adjustment mechanisms that tax imported fuels, materials, and ultimately, all goods and services in line with their carbon content. A coalition of the willing needs to coalesce around a collective vision which results in reduced demand for fossil fuels and stuff which embody the emission of greenhouse gases. That will likely require a border adjustment mechanism to be in place that implies that prices for the carbon content of fossil fuels escalates over time. The revenues generated in the period during which demand declines can be used to support technological change in those less wealthy countries who commit to follow the same path, and implement the same policies, as well as compensating lower income consumers within the countries concerned.

Interestingly, the same policies would also encourage the use of secondary materials (not just plastics), driving a virtuous circle to reduce use of primary materials, generating incentives to extract materials from end-of-life products and packaging, and encouraging reuse / refill and product life extension. Importantly, there would be impacts on consumption. That will necessitate sensible conversations between politicians and their citizens about the impact of consumption. Reporting greenhouse gas emissions based on production rather than consumption has allowed us to maintain a pretence that climate change is a problem that can be solved technologically, by “simply” changing how we make stuff (empirical evidence will show that this has been anything but ‘simple’). But the less we shift consumption, the longer it will take, and (other things being equal) the greater the level of planetary warming to which we will be committed. Ongoing discussions around the need to shift away from livestock-based diets, especially beef and dairy products, are interesting in this context: but the wider discussion around the need – in high income countries - to reduce consumption of stuff has barely begun.

How does this affect the quest for a UN Treaty on plastics? In the world of dis-united nations, I see there being two possible paths ahead, and ideally, they are pursued in parallel, whilst a third avenue also needs to be explored. In the first, and recognising that a sensible climate policy would also address some of the impact of consumption of materials, the Objective for a Treaty should recognise the dis-unity which exists. I think it reasonable to state that behind the desire for a UN Plastics Treaty was the growing concern regarding the impact of plastics on rivers and seas, and also, on terrestrial ecosystems. The Mandate for the UN negotiations is, apparently, far broader than this, although what the INC is required to do (consistent with its mandate) in elaborating a Treaty is, paradoxically, extremely limited. Experience thus far indicates that attempts to ensure the scope of the Treaty’s activity extends to matters such as ‘production of plastics’ will be fruitless in the current (geo-)political milieu.

At the same time, it should be acknowledged that a Treaty that effectively includes no binding commitments is all but useless. There are many arguing for a weaker ‘bottom up’ (in which nations themselves determine what it is they will commit to) approach rather than a potentially more directive ‘top down’ approach (in which what nations are required to do is driven by the need to meet targets, linked to the Treaty’s objective). The former approach is the one which has been adopted under the Paris Agreement, and which has shown limited signs of being capable of delivering what is required to address climate change: there is no reason to believe, and limited room even to hope, that the extent to which objectives are met might be markedly different where the matter of plastic finding its way to land, rivers and seas is concerned.

It seems reasonable, then, to point out that setting meaningful targets is dependent upon them being agreed. This needs the voting rights issue to be resolved, or alternatively, for the implications of failing to resolve it to be properly acknowledged. Doing neither is likely to imply wasting time. It should be appreciated that nations are less likely to cede their implied veto as long as the scope of matters being discussed include ones where resorting to the exercise of that veto delivers, broadly speaking, benefits to the nation that are perceived by negotiators (or those who set their mandate) to exceed the costs experienced by it. Some may also seek to retain the power of veto purely as a matter of (their own) principle.

The circumstances where a ‘majority vote’ system is agreed seem likely to be limited to those where the scope of matters being discussed under the Treaty is more limited than at present. Equally, if the negotiations proceed under a requirement to achieve consensus (explicitly or by default), then much time and effort could be wasted seeking to have included within the Treaty measures which have no prospect of being agreed. Either way, therefore, it might be more fruitful to focus the Treaty’s core obligations on those areas which directly address the flow of plastics into terrestrial ecosystems, and into rivers and seas. Unsatisfactory as this may be to many, it seems as far as one can reasonably expect the Treaty to get if it is to have any prospect of being signed off by dis-united UN member nations. Seeking to persuade nations of the merits of addressing the main components of the most obvious of the problems in a meaningful way seems a more productive use of time than seeking earnestly to cajole nations to do what they will not.

It is possible that alongside the ‘core’ measures that such a Treaty could anticipate the appending of Protocols alongside the core Treaty. The core Treaty could cover issues such as how to prevent loss of pellets and fibres in production / washing / recycling processes, on waste collection and management (including producer responsibility), on items that have a high likelihood of being discarded into the environment, on intentionally added microplastics, on other microplastics, and on ways of preventing ‘escape’ from other sources (such as old dumps and landfills). Beyond ‘core’ measures, Protocols could be established which Members could choose to sign up to or not. The question remains as to whether even these could be agreed in the current context.

Which leads to the second option. There is, in my opinion, very little that a UN Treaty could do that would not rely, ultimately, on nations taking actions that affect the territories over which they exercise jurisdiction. One important exception is a plastic pollution fee, which was proposed in the initial Zero Draft text, but for which one suggested amendment following INC-3 is (as noted above) ‘No text’. Even as proposed in the Zero Draft, the fee’s implementation appears to be based on each Party implementing such a fee. The reality, therefore, is that whether it is ‘top down’ or ‘bottom up’, the effect of any Treaty would be reliant upon Parties implementing measures which they can apply within their jurisdiction. This point often seems to be overlooked, and the fact that it is so often overlooked allows leaders of various countries to grandstand at UN events even when they have little or nothing to grandstand about when it comes to implementing the necessary measures in the territories over which they exercise authority.

In these circumstances, just as in the field of climate change, those nations that recognise that plastics are the source of various problems which need to be confronted urgently might chose to forge their own path as a coalition, or a club. In doing so, they should base their actions around measures which a) address consumption of plastics rather than production, b) include measures – economic instruments – which can be given effect through application of border adjustment (so that when it comes to consumption by citizens within the club, those outside the club are affected by the same incentives), and c) subject to conditionality in terms of measures (to be) taken, (some of the) revenues from such instruments would flow from wealthier to less wealthy nations. As regards such financing, the approach should recognise that a suitably broad scope of application of extended producer responsibility ought not to leave a major funding gap. Key amongst the issues for which funding would be needed would be the institutional strengthening and reforms required for successful implementation of key measures. The revenues from economic instruments, such as levies, or from auctioning allowances, could be dedicated partly towards those ends.

The signal ought to be clear: if you are not taking action, then your products will become less competitive in the markets in which citizens in the coalition / club of countries are engaged, with the converse also being true. Carried out in parallel with an ongoing UN Treaty negotiation, such a coalition of willing nations might manage to persuade – or ‘drag along’ – other nations who might otherwise be disinclined to step beyond measures contained within a core Treaty. It might even help to produce a Treaty with a more significant impact.

The third avenue to explore is how to improve the way in which nations collaborate to address major global ecological (and other) crises. This is a challenge that might draw on insights from disciplines of political theory, international relations, moral philosophy, behavioural psychology, to name but a few. This is not any longer a matter that will be resolved by science. Scientists have no particular right to a particular status either in the media or in politics: some climate scientists will be painfully aware of that. The challenge is one of classical political economy, and international relations, of how nations work together - if indeed they can - to address these problems that threaten to transform how we must live in the future, and possibly, at some stage, whether we even have one (or at least, one worth inhabiting). We will not have a new architecture and approach through which such problems will be addressed before the UN Plastics Treaty negotiations are due to conclude (would we first need to agree the voting system to be applied that determines whether or not it materialises?). But we urgently need a better way than we currently have to address these critical issues.

The final part of Dickens’ opening line reads:

--in short, the period was so far like the present period, that some of its noisiest authorities insisted on its being received, for good or for evil, in the superlative degree of comparison only

The past is not always as rosy as some might have us believe, at least not in all respects. Many will feel this is the best of times as a result of the comforts they enjoy and the myriad ways available for entertaining themselves. Those comforts, though, are out of reach for many people on the planet, and for many of those people, the effects of the consumption of the minority is making life even tougher for them. The same, of course, applies to other species with whom we should be sharing the planet, but who have good reason to believe that we are not demonstrating much by way of ‘species altruism’.

2024 must be the year when we shift focus from a perspective where ongoing decarbonisation is expected to wipe clean, at some future moment, the planetary stain left by our consumption. Time to recognise that dealing with the planetary crises facing us requires us to ask serious questions – at a societal level - about our consumption of stuff.