Options for Dealing with Plastic in the Zero Draft: Where 1 is Greater Than 2 or 3
Following the adoption of a Resolution of the United Nations Environment Assembly on 2 March 2022, an Intergovernmental Negotiating Committee (INC) was convened whose objective is to develop an international legally binding instrument (henceforth, the Instrument) on plastic pollution, including in the marine environment.
After two meetings of the INC in Punta del Este and Paris, the INC issued a Zero Draft text in September 2023, as it had been asked to do in preparation for the third meetng of the INC (INC-3) taking place in Nairobi in Nvember.[1] The text appears to have been based, in part, on an earlier (prepared in advance of the INC-2 meeting in Paris) options paper prepared by the Secretariat.[2]
Part II of the Zero Draft contains 13 control measures designed to address the Objectives of the Instrument, though some of these contain sub-measures, each of which is of significance. If each of these is considered as a distinct measure, there are 19 Measures in Part II.
In seeking to support negotiations at INC-3, several of the proposed Measures are articulated in more than one way. 2 of the Measures have 3 Options attached to them. For 8 of the measures, 2 Options are given. The remaining 9 measures have only one Option proposed.
The Measures are linked to the number of Options in the Table below.
Based on United Nations Environment Programme (2023) Zero draft text of the international legally binding instrument on plastic pollution, including in the marine environment, UNEP/PP/INC.3/4, 4 September 2023.
In what follows, I discuss the measures through reference to the number of Options developed for them. The aim is to highlight the implications of different formulations of the Options in the Zero Draft. In doing this, we hope to inform the negotiating stances of Members at INC-3 and subsequently, at INCs 4 and 5, planned for next year.
For reasons that will become clear, i start the discussion of the measures where 2 Options are presented.
Measures for Which 2 Options are Provided
Wherever there are 2 Options for a Measure, the Options largely respect the following logic:
Option 1 – depending on the nature of the Option, items to be banned, or targets for reducing production, or for recycling, or for recycled content, etc. are to be set in the Instrument itself within Annexes linked to the Measures.
Option 2 – Parties themselves propose to ban / regulate items, or set out production reduction goals, or recycling targets, or recycled content targets, etc. The targets are not set out in the Instrument itself. Rather, criteria are set out in Annexes linked to the measures, and Parties choose to adopt measures / achieve performance levels in line with indicators set out in a linked Annex. In these cases, what the Party decides it will set out to achieve will be reflected in its National Action Plans (NAP).
Option 1 is one where Parties are expected to abide by the Instrument’s content. Option 2 allows Parties leeway for interpretation, and although this leeway could be restricted more or less tightly by the criteria / indicators specified in Annexes, it seems possible that Option 2 is worded specifically so as to allow Parties to determine what they will or will not do in their NAPs. Indeed, it would defeat the object somewhat to specify criteria which each Party is free to apply in its own way, but where the outcomes of each Party doing so are likely to be very similar (in such circumstances, it would be simpler and more efficient to opt for an Option 1-type formulation). Options 1 and 2 could draw out differences between those Parties who are comfortable signing up to clear objectives / targets within the Instrument itself (and to which other Parties would also be signing up to), and those Parties who prefer to retain autonomy (within limits) to choose their own path, and set this out in their NAPs. We might also consider this as indicative of the Parties’ ambitions. After all, an Option 1 form, with requirements clearly stipulated, would be unlikely to prevent a Party ‘going further’, but it would not allow lower levels of ambition than those specified.
If the Instrument is to meet its Objective (and this applies to either of the two specifications of the Objective in the Zero Draft), then if ‘Option 1’ type Measures are used, this will come down to:
the ambition reflected in the Instrument itself, and
the quality of the implementation of measures introduced by Parties to reflect the content of the Instrument.
In the case of ‘Option 2’ type Measures, then whether or not the Instrument meets its Objective will come down to:
the specification of the criteria (and the extent to which these ‘lock-in’ a minimum level of ambition);
the decisions of Parties vis a vis their application of these criteria, as reflected in NAPs; and
(to the extent that the content of NAPs implies any significant change – and the concern would be that it might not) the quality of the implementation of measures introduced by Parties to reflect the content of the Instrument.
The comparison between Options 1 and 2 is illustrated, somewhat crudely, in the Figure below.
Option 2 effectively introduces more ‘steps’ that need to be fulfilled in order to achieve the Objective: each Step introduces an opportunity to dilute performance against the stated Objective. The use of criteria, and the freedom of choice associated with it, also leads to greater uncertainty in outcomes. Goven that it is those outcomes which will determine the extent to which the Instrument meets its Objective, an Option 2-style formulation suggests this might undermine the Instrument’s credibility.
Other things being equal, we believe an ‘Option 1 Instrument’ has a greater prospect of meeting the Instrument’s Objective than an ‘Option 2 Instrument’. An Option 2 Instrument becomes almost completely reliant upon what Parties say they will do in National Action Plans (NAPs).
In the lead-up to INC-3, the Secretariat arranged a webinar based around the role of National Action Plans. Some of the webinar focussed on how NAPs are included in existing agreements, including under the UN Framework Convention on Climate Change (UNFCCC) (and the Paris Agreement), under the Convention on Biological Diversity, and under the Minimata Convention (regarding the gold used by artisinal and small scale gold miners (ASGM)). The presentations largely drew attention to the role NAPs had been given within Conventions / Protocols. Less was said regarding how successful, or otherwise, this approach has been in addressing the problem(s) it was designed to address.
It would seem important, perhaps in inter-sessional work, for the INC to provide evidence of where, based on a critical review of evidence, NAPs (or similar mechanisms) have given rise to the anticipated level of improvement, and at a pace commensurate with Objectives of the Instrument / Convention which the Plans were expected to deliver. After all, if that evidence base is weak, then it would be as well for delegates to know that. Equally, in instances of the approach being successful, it would be useful to understand the conditions under which NAPs might be expected to deliver successful outcomes for the Instrument, and the extent to which those conditions apply in the case of the INC’s work on the Instrument on plastic pollution.
An interesting case study might be the Global Stocktake, which is expected to be completed by the end of 2023, and which will review the adequacy of the Nationally Determined Contributions (NDCs) as a means to deliver the Paris Agreement. The Global Stocktake should consider also the likelihood of the NDCs actually being delivered by the countries proposing them. No doubt, it may be argued that the Global Stocktake process is intended to highlight where further ambition is required under the NDCs. But it is as well to note also that the process of revision of NDCs, and subsequent review via Global Stocktakes, has a five-year cycle: whatever views there may be around the pace of that review cycle – and such a period may be necessary given the sheer magnitude of the task – it does not seem to align well with the pace at which either problem – climate change, or plastic pollution – needs to be addressed.
It is also worth considering the ability of many potential Parties to the Instrument to deal with, each as they see fit, a criteria-informed approach to identifying products, polymers, and substances requiring banning, restriction, reduction, and so forth, or reduction in production / consumption (beyond that implied by criteria-informed measures), reuse / refill / recycling collection / recycling targets. Some potential Parties will have, currently, very limited bandwidth in the relevant Ministries to deal with the range of issues which the Instrument is seeking to address. There is, irrespective of the criteria-based assessments implied, a massive need for capacity building in many of the would-be Parties. Is it wise to support that institutional strengthening with a view to repeated assessment of the performance of what is generally ‘similar stuff’ against the set of criteria specified in Annexes to the Instrument? Is that likely to be an administratively efficient solution to the problem?
Finally, an Option 2 based approach will, to the extent that Parties avail themselves of the latitude which it affords, allow for a patchwork of regulations and restrictions and bans, as well design requirements, recycling targets, rules as to which producers pay what, and rules as to what the payments from producers must cover. Businesses whose transactions are confined within one Party’s borders may be relatively unconcerned by such a patchwork of laws and rules and compliance costs since they have only one set to contend with: any business selling products into multiple Parties, however, will have to grapple with a fiendishly difficult problem where it will be possible – perhaps even profitable – to do some things in one Party that might be banned in another. Such circumstances have the potential to bring the credibility of the Instrument itself under the spotlight.
Measures for Which 3 Options are Provided
There are two measures for which 3 Options are elaborated. In the case of the first - Primary Plastic Polymers – Options 1 and 3 are of the same ilk as the 2 Options above, with Option 1 outlining targets for each Party to reduce ‘its level of production and supply of primary plastic polymers’. Option 3 requires measures to ‘manage and reduce’ global production and supply of primary polymers to be communicated in NAPs as well as measures to reduce intended domestic supply and production. The ‘middle’ Option (Option 2 of 3) seems to be inspired by the Paris Agreement’s NDCs, with Parties proposing a target which is intended to contribute towards a global target to be outlined in the Instrument. It suggests that they would reflect measures and intentions in NAPs, and these would be ‘expressed in percentage terms in relation to the baseline set out in part I of annex A.’ It seems possible, therefore, that a baseline could be articulated in which there is no absolute reduction in primary plastics envisaged (presumably, this would need to account for the effect of all other measures in the Instrument, itself a difficult proposition if all Measures are of the Option 2 type), so that if proposed contributions to be made were rather limited, there might be no absolute reduction in primary plastic production at all. That might, of course, also be the case under Option 3.
It is at least useful to note that the common provisions under this measure indicates that each Party should take measures to reduce demand for and production of primary plastics, including ‘removal of subsidies and other fiscal incentives to the production of primary plastic polymers’. Notwithstanding that the normative term could (should?) be tightened (to read ‘shall’, and not ‘should’?), the reference could be important depending on the definition of a subsidy, and the implied scope of their application (when is a subsidy deemed to be for ‘the production of plastic polymers’)?
As with primary plastic polymers, Options 1 and 3 for the Measure related to Chemicals and Polymers of Concern are akin to Options 1 and 2 in the case where only 2 Options are given. In the case of this measure, Option 2 does actually reference a list in the Annex A, but the Parties are somewhat freer to determine their actions vis a vis the identified ‘stuff’. They shall take:
‘the necessary measures to not allow, or to regulate, as appropriate, the use and presence in plastic polymers, plastics and plastic products of the chemicals, groups of chemicals and polymers identified in part II of annex A’
Measures for Which 1 Option is Provided
As indicated above, a number of measures are associated with one Option only. In some of these, the Measure, as currently worded, is not especially demanding. Parties would be required to act, but the extent of the measures they implement is left for them to determine. In the case of some other Measures, there may be only one Option because it made little sense, at this stage, to articulate more Options given the intent to lay down a marker with a view to discussing modalities around that (e.g., in relation to Transparency and reporting) at INC-3.
Summary of Zero Draft Proposals
There is a version of the Instrument that might emerge from negotiations around the Zero Draft which could be transformative. That version would, in our view, be based around Option 1 type Measures. There are some omissions, and matters that need resolving (especially in respect of Financing as currently set out in Part III), but for a Zero Draft, and given the early stage of negotiations, this provides an excellent starting point.
To the extent that Options 2 (or 3, where relevant) become the basis for the agreed Measures, then the Instrument is likely, in our view to:
place enormous emphasis on the content of NAPs, and the credibility of the measures implemented by Parties with a view to achieving outcomes specified within their NAPs;
have an outcome that is, as a result, uncertain (and hence, unlikely to be a reliable way to pursue the Instrument’s Objective);
render the financing needs implied by the Instrument also uncertain;
create a significant administrative burden for Parties who lack the institutional capacity to undertake the complex task of assessing options against criteria (as well as for those who are not so lacking), and who will need significant financial support as a means to implement even a well-defined Instrument, let alone one which asks the Parties themselves to come forward with their own Plans;
take time (as a result) to implement
take further time to develop given the need to assess, and the likely need to then revise, the combined ambition contained within NAPs, as well as the adequacy of Parties’ proposed measures to achieve what is articulated within their NAPs. Action will have been delayed and plastics in rivers and oceans will continue to accumulate at an alarming rate;
give rise to a patchwork of regulations and restrictions, and associated measures, thereby missing the opportunity for some alignment across Parties, and creating a compliance headache for those businesses who sell plastics / plastic products in the markets of various Parties;
be less likely to lead to sufficient action to meet the Instrument’s Objective; and
potentially, as a result, call into question the credibility of the Instrument itself.
Perhaps the only thing to be said in favour of an Option 2 Instrument is that could encourage a larger number of UN Member countries to become Parties to the Instrument. But that is of limited comfort if the Objective of the Instrument is compromised as a result - it should not become, de facto, the objective of the Instrument.Similar things can be said for voluntary agreements in the private sector: where there are weak, or poorly specified, objectives, the inclusion of more participants is often achieved at the expense of higher levels of attainment. Businesses who have participated in such agreements recognise that they need supportive policy instruments to drive performance forward: it would be somewhat self-defeating if the shortcomings of voluntary agreements were effectively replicated in an Instrument which, though legally binding, actually binds the Parties to a set of processes, and doing very little.
I hope delegates at INC-3 (and beyond) will focus on Option 1 style formulations in developing the Instrument. To the extent that this proves difficult as negotiations unfold, then serious consideration should be given to formulating the Instrument along the lines of a weaker main Instrument, supplemented by Protocols which embody greater ambition, and which Parties would be free to choose whether or not to be Parties to. Those Protocols should include the type of trade related measures already included in the Zero Draft so that there may be some inducement to Members to sign up to the Protocols. In the meantime, Members don’t have to wait: what the Instrument ultimately requires Parties to do will largely rely upon actions being taken by the Parties to give substance to the Instrument.
An Instrument which is largely based on ‘Option 2(and 3)’ type measures leaves too much to chance to have a significant impact in the desired timeframe. It will be more bureaucratic, it will not deliver a harmonised approach, it will delay action, and the Instrument’s objective will not be met in a timely fashion.
Time – rather like plastic itself - is not a resource that we should be wasting.
1] United Nations Environment Programme (2023) Zero draft text of the international legally binding instrument on plastic pollution, including in the marine environment, UNEP/PP/INC.3/4, 4 September 2023.
[2] United Nations Environment Programme (2023) Potential options for elements towards an international legally binding instrument, based on a comprehensive approach that addresses the full life cycle of plastics as called for by United Nations Environment Assembly resolution 5/14, UNEP/PP/INC.2/4, 13 April 2023. See also UNEP (2023) Additional information linked to potential options for elements towards an international legally binding instrument, UNEP/PP/INC.2/INF/4, 23 May 2023.
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