A Treaty of the Willing – and How to Get There

Torbjørn Graff Hugo, a longtime observer of the plastics treaty negotiations, has written an excellent, long-form policy paper on how to achieve an effective plastics treaty. For international policy nerds, this is a must-read. It brings together, in cohesive fashion, much of the loose talk and speculation and frustration that can be summed up as “where do we go from here?” Graff Hugo doesn’t claim to have the one and only answer, but he gives us a clear way to think about it. Here is a brief summary (but you should really read the whole thing) with some commentary.

The diagnosis of the problem is by now obvious to all observers of the negotiation process: a handful of petrochemical states have abused the poorly-defined rules of procedure and the culture of consensus to block any meaningful movement, much to the frustration of the majority of countries. While the problem is clear, the solution is less so, and this is where the paper is so helpful.

First, Graff Hugo argues that what makes for an effective treaty is different from what makes for a successful process to deliver the treaty. For both, broad participation is key, but in different ways. Neither requires universal participation. No previous treaty has ever required universality, and the expectation of universal participation is a straitjacket that we must discard.

An effective treaty, particularly without the participation of key polymer producers, requires enough Parties that they can use their collective market power to shape the global plastics market. Different control measures require different levels of participation. For example, bans on single-use plastics can be effective in addressing local pollution hotspots even with very few Parties. Product design requirements will be more effective if the Parties’ collective market is large enough to persuade manufacturers to adhere to their standards globally. Caps on primary production are the requirements most prone to leakage and free riding and thus require the broadest participation.

But effective treaties do not write themselves. We also need an effective process to produce the treaty, and this also requires broad participation, but of a different kind. A successful strategy will include a broad array of countries, including most-affected countries, to ensure legitimacy and withstand the inevitable counterattacks of the petrochemical states. It also needs a small handful of countries to demonstrate political leadership and, effectively, take the reins of the process – doing the diplomatic and logistical work to drive the process forward.

Notably, these two types of participation – concentrated market power and broad representation – are distinct and don’t necessarily indicate the same set of countries.

The paper lays out three paths to achieving a treaty: through the INC, through a country-led process (also called the Ottawa process), and through existing institutions (such as the Basel Convention). All have their hurdles, but the paper’s real contribution is showing that these are not exclusive pathways but synergistic ones with more in common than not. All require a process to draft a text that is both effective and acceptable to a critical mass of countries. All require the courage to stand up to inevitable attacks from the petrochemical states. And all require leadership and initiative from a few countries which are willing to drive the process forward. Moreover, simultaneously pursuing multiple paths increases the likelihood of success. For example, the credible threat of an Ottawa-style process increases the likelihood of wringing concessions from the blocking states within the INC.

This is an excellent paper, and I largely agree with its conclusions. But I do have some criticisms. In particular, having shown that successful treaty design and negotiation strategy are two distinct issues, Graff Hugo fails to connect them; but they are intimately connected. This is clearest when he describes different control measures requiring different “activation levels” (entry into force requirements) and even suggests that the treaty could be designed with multiple protocols that come into force at different times. In essence, this is a proposal for a framework convention, with the substantive, legally binding commitments contained in protocols to the convention. This approach would be disastrous. It would imply several years’ delay before real obligations begin to bind, and the most ambitious measures would not come into effect for at least a decade, if ever.

More importantly, this approach is a recipe for recreating the current deadlock. Most of the petrochemical states (the US is currently a wildcard) would be happy to join a framework convention with no substantive obligations; this would allow them to block effective protocols, using the same tactics that they currently employ.

Instead, participation in the negotiations must be limited to those countries that truly want the treaty to fulfill its mandate of ending plastic pollution. The most ambitious proposed measure – reducing production and consumption of plastic to sustainable levels (SPC for short) – should be used as a gatekeeping tool. As scientists repeatedly remind us, SPC is not merely important but strictly necessary to the success of the treaty. Countries that do not support SPC should not have the ability to undermine an effective treaty for the rest of the world. Countries that do support this measure are also likely to have similar views on the less controversial measures: eliminating chemicals of concern, restricting problematic and unnecessary products, traceability and transparency, and the like. Serious negotiation will still be needed on the financial mechanism, where even ambitious countries diverge, but hints of that compromise have started to appear.

Using SPC as a gatekeeping tool will enable a relatively rapid conclusion to the negotiations. It will also help to ensure that the treaty can achieve its goal. This leaves open the question of whether the countries that support SPC command enough market share to deliver global rules. Early indications are good, with broad support from multiple quarters; but that is a topic for another day.

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Dr. Neil Tangri