The preferable outcome remains for an ambitious, legally binding treaty to be concluded under UNEA’s auspices, thereby ensuring broad inclusivity. However, there are at least two other possible pathways
by International Institute for Sustainable Development (IISD)
January 28, 2025
Governments adopted Resolution 5/14 to launch negotiations on a treaty to address plastic pollution at the fifth session of the UN Environment Assembly (UNEA) in Nairobi, Kenya, in March 2022.
Negotiations took place under the UN Environmental Programme (UNEP) umbrella and were to conclude by the end of 2024. An Intergovernmental Negotiating Committee (INC) was created to conduct the negotiations. There have been five INC sessions, with the latest in Busan, Republic of Korea, in December 2024. INC-1 took place in Punta del Este, Uruguay, in November 2022, INC-2 in Paris, France, in June 2023, INC-3 in Nairobi in November 2023, and INC-4 in Ottawa, Canada, in April 2024.
The INC is to be guided by rules of procedure that set rules for decision making by state parties. However, similar to the impasse that has plagued the UNFCCC and the Convention on Biological Diversity (CBD), there is still no agreement on these rules. By contrast, the rules for the Convention on Wetlands (Ramsar Convention) and the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) have been adopted from the outset.
The INC draft rules of procedure require all efforts to reach consensus, but if consensus is not possible, allow for a vote, with a two-thirds majority required for a decision to be adopted. However, as the rules of procedure have yet to be agreed upon, the INC continues to work based on consensus.
INC-5 could not agree on the elements of a plastic pollution treaty. Disagreements were notable on goals and measures for reducing overall plastic production and on chemicals of concern in products. INC-5 closed with serious concerns that forging consensus might not be achievable when it resumes as INC-5.2 in 2025. Indeed, what if no consensus can be reached under this UNEA process?
Treaties outside the UN
States determine the forum for negotiating and agreeing upon a treaty. It can be within the UN, another intergovernmental forum, such as the World Health Assembly (WHA), or between states through a process they choose. A plastic pollution treaty can, therefore, be agreed upon through the existing UNEA process, or outside of it.
Several treaties have been negotiated and adopted through plenipotentiary conferences outside the UN including: the Convention on Wetlands, hosted by Iran in 1971; CITES, hosted by the US in 1973; and the Ottawa Convention on Land Mines, hosted by Norway in 1997 (where the negotiations started under the UN, the UN Conference on Disarmament, but were moved out when no consensus could be reached). These three treaties are not regarded as UN treaties as they were not negotiated under the UN umbrella, although the CITES Secretariat is administered through UNEP. Due to their status as international legally binding instruments, such treaties are registered with the UN Secretariat.
The preferable outcome remains for an ambitious, legally binding treaty to be concluded under UNEA’s auspices, thereby ensuring broad inclusivity. However, we see at least two other possible pathways. One remains within the UNEA process but scaling back the level of ambition (for now); the other opts out of UNEA and initiates a new process.
The pathway to consensus option
One option is to remain under the UNEA process, focus on areas of consensus, and defer key contentious issues for future deliberation. Discussions on primary plastics production and chemicals of concern in products would be deferred. The treaty would prioritize agreed upon measures, such as product design standards, resource efficiency, waste management, and a circular economy approach. It would allow countries to collaborate on immediate, impactful solutions while building trust and momentum for future negotiations.
Under this scenario, high ambition countries could lead, for example, by implementing stricter domestic measures, which should be allowed under the treaty, investing in innovation, and providing financial and technical support for global implementation.
Similar inspiration for this “pathway” option may be found in the International Convention for the Prevention of Pollution from Ships (MARPOL), under which two pollution-related annexes are mandatory and others, now also in force, are optional. Another is the Vienna Convention for the Protection of the Ozone Layer, a framework convention that provided for protocols, amendments, and annexes parties could join later. The ensuing Montreal Protocol on Substances that Deplete the Ozone Layer and its Amendments is a great success of international environmental law.
Under this “pathway” option, measures for transparency and accountability are essential and will be critical to ensuring progress. These include a global plastics monitoring system to track product chemistry, production, trade, and consumption, as well as encouraging national strategies to align production and consumption with sustainability goals.
This phased approach could attain significant progress by addressing immediate priorities, respecting diverse perspectives, and laying the groundwork for a comprehensive solution in the future.
The critical mass option
Another path is for the more than 100 states that expressed commitment to an ambitious treaty to decide to hold a plenipotentiary conference outside of the UN, adopt their own rules of procedure, and craft an ambitious treaty through a tailored diplomatic process.
These countries could then sign and ratify the treaty (thereby becoming parties) and bring it into force. The treaty could be open to all states to join later. Further, the treaty could include provisions for dealing with non-parties. For example, it could oblige a party trading with a non-party to require documentation that substantially conforms to the treaty’s requirements.
This option is admittedly not ideal. It results in limited participation (at least initially) and potential fragmentation. It is not, however, unprecedented and remains viable.
Way forward
Consensus in international treaty law making is difficult, but it is worth striving to achieve. However, it is also a construct that many nation-states can find too constraining in the face of serious environmental threats.
Before INC-5.2, states seeking solutions should consider the various options available to them to progress toward the desired destination. Whatever approach is adopted, we can’t afford another impasse.
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This article was originally published by the International Institute for Sustainable Development (IISD) and is republished here as part of an editorial collaboration with the IISD. It was authored by Professor Maria Ivanova, Director School of Public Policy and Urban Affairs at Northeastern University; Charles E. Di Leva, Adjunct Professor at the American University in Washington, DC, and Partner at Sustainability Frameworks, LLP; and John E. Scanlon, Executive President at the International Council of Environmental Law.