On September 4th, the zero draft of the Global Plastic Pollution Treaty was published, reflecting a wide range of options and viewpoints. Among the various options are mandatory reduction of virgin plastic production levels, the ban on single-use plastic products, transparency and labeling, the promotion of reuse, and the establishment of extended producer responsibility regimes.
The zero draft of the Global Plastic Treaty
The text of the zero draft for the Global Plastic Treaty was developed by Gustavo Meza-Cuadra Velásquez, Peru's ambassador and president of the Intergovernmental Negotiating Committee (INC), with the support of the INC secretariat, based on the mandate of UNEA 5/14 resolution and the opinions expressed during the first (INC-1) and second (INC-2) negotiation cycles.
The options presented in the zero draft will serve as the basis for negotiations during the upcoming third cycle of meetings (INC-3) scheduled for November in Nairobi, Kenya. As indicated by Meza-Cuadra Velásquez in the INC-3 scenario note, the negotiations will also be based on a synthesis report of proposals received on elements not discussed during INC-2, which will be published in the coming days and will include both civil society and country proposals.
Great ambitions but also weaknesses
The text of the zero draft consists of 32 pages, divided into six parts and seven annexes, with various sections still in the form of "placeholders" for elements that have not yet been discussed and numerous explanatory notes and references to other international treaties that inspire certain parts of the text. For elements that have already been discussed during INC-1 and INC-2, there are two or three options.
The document is complex and, according to experts, requires in-depth legal analysis. For example, in Part II on the lifecycle of plastic and plastic products, one of the strengths of the zero draft concerns the reduction of plastic production. In the section related to primary plastic polymers, the zero draft states that "Parties shall take measures necessary to prevent and mitigate potential negative impacts on human health or the environment resulting from the production of primary plastic polymers, including raw materials and precursors."
However, to achieve this goal, three possible options are indicated, ranging from mandatory "reduction targets" to "measures adopted [by Parties] [...] reflected in national plans," the latter being much less stringent.
In a "hot" analysis of the zero draft text conducted on September 6th, Andrés Del Castillo, a senior attorney at the Center for International Environmental Law (CIEL) who follows the Global Plastic Treaty negotiations, stated that the zero draft is a "fundamental document to transition from discussions to actual negotiations", the structure and options expressed in the text represent "a very strong foundation" for the start of negotiations, and the text reflects "a wide range of options and viewpoints," with some significant ambitions but also some weaknesses.
Comparing the purpose document for INC-2 and the zero draft, the expert notes many similarities in structure but also some forward strides, such as the presence of specific chapters dedicated to transparency, labeling, and specific obligations related to the trade and export of plastic products and plastic waste; the introduction of the concepts of single-use plastic and short-lived plastic that were not present before; the section dedicated to the promotion of reduction, reuse, and refilling.
The zero draft also includes a section dedicated to problematic chemicals and polymers, one dedicated to extended producer responsibility (with two options: each Party "shall" establish and operate EPR systems, or "is encouraged" to establish and operate them), and one dedicated to a fair transition.
A turning point to end plastic pollution
"The publication of the zero draft represents a significant turning point in the international community's efforts to end plastic pollution," said Magnus Løvold, an expert at the Norwegian Academy of International Law. "In my view, the zero draft faithfully reflects the proposals put forward so far in the process and provides the necessary clarity on the choices that states will have to make regarding the treaty's structure, specificity, and legal strength. Of course, this is just a zero draft and not a negotiated outcome.
It will now be up to the states participating in the negotiations to decide and clarify their position on the options presented. Although opponents of the treaty will undoubtedly seek to weaken it, there seems to be more than enough support among states for a strong treaty with specific and binding provisions to prevail."
According to Løvold, "it is impressive to see how President Ambassador Meza-Cuadra of Peru has managed to get this process back on track after the procedural debacle in Paris a couple of months ago." Løvold refers to attempts to hijack the negotiations during INC-2 in Paris at the end of last May when several delegations led by Saudi Arabia, India, Brazil, and Iran blocked the first two and a half days of negotiations through discussions on procedural rules that should have been resolved during the preparatory meeting (OEWG) in Dakar, Senegal, in June 2022.
Now, it is necessary to resolve the procedural impasse
The procedural rules concern how decisions are made and are currently only provisionally applied because no agreement has been reached on rule 38 regarding decision-making processes (the states that blocked the negotiations at INC-2 would like consensus to be mandatory for every decision, while the EU and other states want decisions to be made by a majority) and rule 37 on the right to vote (the EU wants the right to vote on behalf of its 27 member states, while the United States would like each EU state to vote individually).
In an analysis published after the release of the zero draft of the plastic treaty, Magnus Løvold and his colleague Torbjørn Graff Hugo from the Norwegian Academy of International Law warn that conducting negotiations with provisional procedural rules represents an increasing risk with each subsequent negotiation, as the stakes on substantive treaty elements increase. The experts explain that until rule 37 is approved, it will not be possible to proceed to vote on rule 38; therefore, despite the zero draft released last week being "a solid push towards a treaty with specific global rules," there is expected to be "coordinated procedural pushback" from states that do not want a strong treaty with global obligations.
Løvold and Graff Hugo recall that so far, President Meza-Cuadra Velásquez's consultations on rule 37 have been fruitless because both the EU and the USA refuse to take a step forward. However, the experts indicate that it is possible to overcome this issue: "Other countries or regions may need to take a step forward. If a group of states, supported by the majority of INC members, were to present a clean version of the rule draft, with a workable compromise for rule 37, it could, with some luck, prepare the commission for a quick and efficient decision on the first day of INC-3.
If that were to happen, it would pave the way for a substance-focused negotiation cycle based on a solid zero draft and significantly improved prospects for a strong and ambitious treaty text by the end of 2024."
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