A tale of two treaties — On the procedural woes of the plastics treaty negotiations and why they matter
The Peruvian chair of the conference seemed to have a penchant for poetry. “There is, brothers, so much to do, and boy, how little we have done, how much remains to be done”, Ambassador Gustavo Meza-Cuadra had said, citing the poet César Vallejo, as he concluded the first session of the plastics treaty negotiations in Punta del Este, Uruguay, in early December 2022.
Six months later, the ambassador would once again turn to literature, this time Victor Hugo, to convey his emotional state: “How sad to think”, he said to a packed conference room a stone’s throw from the Eiffel Tower, “that nature speaks, and mankind doesn’t listen”.
From his seat at the centre of the podium at the UNESCO Headquarters in Paris, the ambassador had reason to feel disheartened. The equivalent of nearly one million garbage trucks of plastics had been dumped into the environment since the UN Environment Assembly, in March 2022, launched international negotiations on a plastic pollution treaty.
Scientists, governments and civil society organizations had for years issued dire warnings about the irreparable harm that plastic pollution causes the Earth’s oceans, rivers and lakes. With the decision by the “world’s highest-level decision-making body for matters related to the environment” to conclude a treaty to “end plastic pollution” within an ambitious three-year timeframe, it had looked like governments were finally getting ready to act.
One year into the process, it wasn’t as if there were no achievements to report. Indeed, the political momentum that had prompted the UN Environment Assembly to initiate treaty negotiations had continued to grow. A majority of the participating countries had expressed their support for a treaty featuring binding rules targeting the most serious causes of plastic pollution, including bans and obligations to phase out high-risk plastic products, and problematic polymers and chemicals. In a surprising turn of events, just before the second negotiation session in Paris was about to kick off in Paris, Japan — a significant producer and consumer of plastics — announced its decision to join the High Ambition Coalition to End Plastic Pollution, a cross-regional coalition of more than fifty countries dedicated to “end plastic pollution by 2040”.
The process had put wind in the sails of even more radical voices. Stretching the negotiation mandate set by the UN Environment Assembly, there had been a push to expand the treaty’s scope beyond addressing plastic pollution, strictly defined. Framing plastics, in the words of UN Secretary General Antonio Guterres, as “fossil fuels in another form”, Greenpeace and other civil society organizations had gained support for their call for the treaty to encompass a “global cap” on virgin plastic production.
Yet, as the second negotiation session in Paris concluded, what many had initially hoped would become “a triumph by planet earth over single-use plastics” was starting to look more like a scene from the upside down in the TV show Stranger Things. Despite Ambassador Meza-Cuadra’s plea for “effective, decisive, and swift negotiations”, the mounting support for an ambitious treaty on plastic pollution crisis had all but disappeared in a diplomatic gyre of procedural disputes.
As Meza-Cuadra gavelled the second session to a close, the intergovernmental committee he had been elected to preside over was, it seemed, no closer to an agreement on what the plastic pollution treaty would actually do. If anything, divisions between countries had deepened, and the whole process, many felt, were starting to exude a sour smell of distrust.
Paris: Monday 29 May 2023 — Points of disorder
Indeed, the process to negotiate a treaty on plastic pollution has, so far, been a masterclass in obfuscation and dilatory tactics. The President of France, Emmanuel Macron, had only just opened the second negotiation session in Paris by emphasizing the need for “a radical change in all modes of consumption and production” of plastics, when the Russian negotiator, Vladimir Lenev, rose to his feet demanding the first of what would become a countless series of points of order — that is, queries as to whether correct procedure is being followed.
“The representative of Romania does not have the right”, Mr. Lenev claimed, “to make any statements on behalf of the Eastern European States at this session”.
It was a point of little practical consequence. In a meeting in Nairobi a few months earlier, the Eastern European group had voted to nominate Estonia and Georgia as their representatives in the bureau — a group of government officials elected to coordinate the work of the negotiation committee.
Mr. Lenev, who had himself been vying for a seat in the bureau, was clearly not happy with this outcome. Perhaps inspired by other more infamous election fraud claims, Mr. Lenev attacked the process, arguing that the nominations made by the Eastern European group in Nairobi had no bearing on the organization of the plastic treaty negotiations: the representatives in Nairobi were “not authorized to make any decisions regarding candidates for election positions” in the plastics treaty negotiations, as Mr. Lenev put it, since these negotiations constitute “an independent structure”.
Technically, Mr. Lenev was not wrong. The vote to nominate Estonia and Georgia had taken place in the context of the Committee of Permanent Representatives, which is a subsidiary organ of the UN Environment Assembly. The committee tasked with negotiating a treaty on plastic pollution is, however, not a subsidiary body of the UN Environment Assembly — and even if it had been, decisions made in the context of one subsidiary body would not automatically have bearing on decisions made in another subsidiary body.
The Russian representative was probably aware that his procedural objections would not alter the results of the bureau elections. But if Mr. Lenev — as it would turn out — lost the battle for the bureau seats, he was not prepared to lose the procedural war that followed. No sooner had Mr. Lenev wrapped up his intervention than Maria AlJishi, from the Ministry of Energy of Saudi Arabia, raised another point of order, questioning “how the voting process will be taking place” without the rules of procedure formally adopted.
Wary, it seemed, of the potential precedent that a vote on bureau seats could set for the rest of the negotiation process, Ms. AlJishi requested “clarification” and “assurances” from the chair that the vote to elect bureau members would constitute an “exceptional circumstance” and — with reference to another process in which voting had taken place — that “the [voting] rule will not be abused in the future.”
For most observers, it was not immediately clear where Ms. AlJishi’s apprehension about a possible “abuse” of the voting rule was coming from. It would later come to light that she was referring to a situation that had occurred a few weeks earlier at a meeting of parties to the Rotterdam Convention — a treaty adopted in 1998 that regulates international trade in hazardous chemicals and pesticides. During that meeting, a group of countries had proposed to amend the treaty and introduce a new annex, which would simplify the process of expanding the list of chemicals requiring so-called “prior informed consent”. Important stuff wrapped in legalese. As it became clear that several countries, particularly Saudi Arabia, were opposed the proposal, the matter was eventually taken to a vote, which, as it turned out, failed to garner the three-fourths majority required for amendments under that treaty.
There is little doubt that the decision made at the meeting of the Rotterdam Convention to take the proposed treaty amendment to a vote was fully in line with the procedures of that treaty. It also illustrated how Saudi Arabia and other countries suspicious of attempts to strengthen treaty obligations can triumph in a system that allows substantive decisions to be resolved by a vote. As Linroy Christian from Antigua and Barbuda would later put it, the vote to defer the amendment of the Rotterdam Convention “demonstrated effective utilization of the voting process and as such beholds us to trust in such a process, should the need arise”. Yet, Saudi Arabia’s description of the experience as one of “abuse” suggested that they found the mere possibility of something similar happening in the plastics treaty negotiations deeply unsettling.
Seemingly taken aback by how ferociously Ms. AlJishi insisted that the vote to elect bureau members would constitute an “exceptional circumstance”, Ambassador Meza-Cuadra and the principle legal officer at the UN Environment Programme (UNEP), Stadler Trengove, found themselves unable to calm the procedural uproar that followed. Unsatisfied with the chair’s repeatedly stated commitment to “consensus-based decision making”, China, Brazil, Argentina, India and Iran soon joined Saudi Arabia in demanding that the vote to elect the bureau should not set a precedent for the Committee’s decision-making process.
To succeed in his efforts to formally constitute the bureau and move the conference forward, Meza-Cuadra had no other choice, in the end, than to yield. The vote to elect bureau members “is an exceptional, one-off case”, he said.
The procedural deferral eventually allowed bureau elections to proceed. Russia’s protests notwithstanding, Estonia and Georgia were duly elected to represent the Eastern European group in the bureau. Regrettably for Mr. Lenev, Russia’s objections to the nominations of Sweden and the United States to represent the Western European and other States in the bureau did not yield any results either.
But the debate about whether these elections constituted an “exceptional circumstance” or not turned out to be the first spark in a procedural firestorm that would erupt when the chair, later in the afternoon, tried to foreclose any further discussion of the rules of procedure. In a statement that sounded eerily familiar to those participants that had attended the committee’s previous session in Punta del Este, Meza-Cuadra proposed that he “continue to consult with delegations on this issue” and that the committee, for the remainder of the session, continue to apply the draft rules of procedure “on a provisional basis until their adoption, as agreed by the committee at its first session”.
As Meza-Cuadra attempted to turn the page and shift the committee’s attention towards the substantive aspects of the new treaty, legal officer Trengove leaned in, as he would do so many times over the next forty-eight hours, to inform the chair that Saudi Arabia had requested a point of order.
Ms. AlJishi had a seemingly innocuous question: would the chair’s consultations would cover the draft rules of procedure in their entirety, or just the unresolved issues regarding the European Union’s voting rights? A fair question, one might think. But it set in motion a procedural merry-go-round that would take nearly two days to stop. And for many, it must have triggered an uncomfortable sense of déjà-vu. Wasn’t this issue settled during the meeting in Dakar, exactly one year earlier?
Dakar: Monday 30 May 2022 — The butterfly effect
The procedural debacle that would forever mark the second session of the plastics treaty negotiations could, most likely, have been avoided. A full year earlier, a similar debate had taken place at the committee’s preparatory meeting held in Dakar, Senegal, over the draft rules of procedure that had been prepared by UNEP’s law division.
UNEP could, ahead of that meeting, have prepared for a scenario in which the negotiation committee simply adopt the same rules that had successfully governed the negotiations for the Minamata Convention on mercury a decade earlier. But for reasons unknown, UNEP suggested a number of rule changes that, for many negotiators, just didn’t make sense. Why, for instance, did they propose that the negotiation committee should not have the power to establish subsidiary organs? And why did they tinker with the right of non-governmental organizations to participate in and contribute to the negotiations?
Regardless of their motives, UNEP did not appear to have fully grasped, or at least not realized soon enough, that altering the rules of how states negotiate treaties is like playing with fire. It can quickly get out of hand. What should have been a mere rubber-stamping exercise in Dakar turned, because of UNEP’s rule tinkering, into a three-day long firefighting job.
Negotiators eventually managed to quell some of UNEP’s proposed rule changes, with Jordan stating that “we should just use the Minamata rules and not re-write these”. But unfortunately, the procedural Pandora’s box had already been opened, allowing other more deep-rooted issues to flare up from the musty depths of multilateral environmental diplomacy.
“The draft rules of procedure prepared by UNEP were problematic”, Andrés Del Castillo from the Centre for International Environmental Law (CIEL) said in an interview. According to Del Castillo, the draft rules unnecessarily re-opened issues that had previously been solved in other processes.
The United States, in particular, readily seized the opportunity to challenge the European Union’s right to vote on behalf of its members.
The external representation of the European Union is a complicated legal and political matter that echoes back to the creation of the so-called European Political Cooperation in 1970. The members of the European Union have delegated to the European Commission the power to develop and implement internal rules directly applicable to all members. “Therefore”, Hugo-Maria Schally, the European Union’s lead negotiator said in an interview, “we consider that the European Union — as is already the practice in many multilateral environmental agreements — has the right to cast the vote in matters related to these powers for all its members in the negotiation of international agreements, irrespective of whether these members are present at the meeting, or not.”
For the European Union, this is “a matter of principle”, said Mr. Schally.
For the United States, however, this is — at least partly — supranational nonsense. While they don’t dispute the European Commission’s right to vote on behalf of its members and, as stated by a United States official, “value the participation of Regional Economic Integration Organisations in multilateral fora”, the United States has maintained that the Commission can only vote on behalf of members that are actually at the meeting. Allowing the European Union to vote on behalf of member states that are not present “would not be fair to other states, which must be present in order to vote”, the official said.
The lengthy debate about the rules of procedure gave Saudi Arabia, in turn, an opportunity to open a broader debate about how the committee should make its decisions in the first place — and, specifically, whether voting on decisions on so-called substantive matters should be allowed or not.
Historically, most multilateral treaty negotiations have allowed decisions to be reached through voting, though often as a measure of last resort. This is also why the two-thirds majority is specified in the Vienna Convention on the Law of Treaties — an agreement adopted in 1969 and known as the “treaty on treaties” — as the standard decision-making rule for the adoption of treaties at international conferences. But in most instances, countries have been able to gauge where the wind is blowing long before the point of decision, and treaties have therefore, as a matter of practice, usually been adopted without a vote.
In Dakar, however, Saudi Arabia made a first attempt to turn practice into principle and make consensus a legal requirement for treaty adoption. Possibly worried that they would end up advocating a minority view in the upcoming negotiation process, Saudi Arabia said that the plastics treaty, “should be adopted by consensus, meaning no standing objection by any party can be ignored”.
Importantly, as the meeting in Dakar drew to a close, Saudi Arabia took the floor to withdraw their objections and go along with the standard decision-making rule allowing for substantive decisions to be reached through voting as a last resort.
“It is my recollection that they did not object in the final plenary that decided to forward the proposed rules to the [committee’s first session], with [the decision-making rule] unbracketed”, said one meeting participant.
The dispute between the United States and the European Union over the latter’s voting rights had, however, no winner, forcing the Canadian chair of the procedural debate to leave the question of how the European Union should exercise its voting rights unresolved.
Punta del Este: Monday 28 November 2022 — Exploding brackets
The brackets left open in Dakar would leave a stubborn stain on the entire negotiation process. When Ambassador Meza-Cuadra, less than thirty minutes after he had been elected to chair the negotiation committee at its first formal session in Punta del Este, invited the committee to consider the rules of procedure, he had no clean draft to present for adoption.
In the run-up to the session in Punta del Este, there had been little effort to resolve the dispute between the United States and the European Union. On the day preceding the opening of the session, the United States and the European Union had submitted a proposal for “consolidated language” on the point, which left open and in brackets whether the European Union could cast votes equal to the number of its member States “participating in the Committee” or “duly accredited and present at the time of the vote”. An agreement to disagree, in other words, not a solution to the issue.
“Given that there is as of yet no agreement to adopt the rules of procedure” Meza-Cuadra said, in what would become a fateful set of remarks: “I propose that I call consultations on the bracketed text with a view to reaching an agreement. And pending that agreement, we apply the draft rules of procedure provisionally to our work”.
Since the meeting in Dakar, the growing support for the High Ambition Coalition’s call for a treaty “that will eliminate problematic plastics, substances and additives, including by bans and regulations” had likely set the alarm bells ringing within the Ministry of Energy in Riyadh, as well as in the capitals of other oil and plastic producing countries. It is reasonable to assume that some of these countries were becoming increasingly concerned about the effect such “bans and regulations” may have on their oil and plastic industries — to say nothing of the more radical proposals of a “global cap” or on production of virgin plastics.
In contrast to others, Saudi Arabia understood the importance of the rules of procedure. The brackets presented Saudi Arabia and other oil and plastic producing countries with a golden opportunity to delay — and perhaps even prevent — the adoption of such bans and regulations by keeping the rules of procedure, including text that had been agreed in Dakar, in play.
Indeed, less than thirty minutes after Meza-Cuadra had been elected to chair the negotiation committee at its first formal session in Punta del Este in November 2022, Saudi Arabia took the floor to demand an extension of the square brackets. Wishing, they said, to “maintain all views expressed” when the draft rules of procedure were discussed in Dakar, the Saudi representative requested to expand the brackets to the entirety of the paragraph related to the European Union’s voting rights.
The match had been struck. In what looked like a coordinated effort, Bahrain, Qatar and Egypt stepped up in support of the Saudi proposal. Moreover, in a move that appears to have caught most other participants off guard, China took the floor and proposed — after an awkward back-and-forth with an increasingly exasperated chair — to place the entire rules of procedure in brackets.
Backed by Senegal and the United States — and an elaborate intervention by legal officer Trengove — Ambassador Meza-Cuadra made several attempts to put a lid on the kindling fire by striking his gavel, claiming that the “issue is clear” and suggesting the committee move on to the next agenda item.
But Saudi Arabia and China wouldn’t yield. As they interrupted the chair again, this time to request “more time to consider the issue” and — twice — to petition the chair to confirm that their comments “had been captured in the new proposal” it was clear that the question about the committee’s decision-making rule was, if anything, not clear.
Seemingly worried that the committee would become embroiled in a lengthy discussion about the rules of procedure, Meza-Cuadra confirmed, after some hesitation, that he had “taken due note” of the Saudi proposal and stressed that the committee “are not approving the rules of procedure”.
While Meza-Cuadra, after these assurances, were allowed to move on, some observers — including the authors of this article — were starting to suspect that Saudi Arabia’s proposal to expand the brackets in the rule stipulating the European Union’s voting rights was only the first move in a ploy to re-open the debate about the committee’s decision-making rule.
Four days later, as the committee’s first session was drawing to a close, these hunches would turn out to be right.
Punta del Este: Friday 2 December 2022 — The omen
As the sun dipped into River Plate on the last day of the committee’s first session in Punta del Este, India took the floor to deliver a statement that would cast long shadows over the negotiation process.
Throughout the week, a large group of countries had expressed their support for an ambitious treaty with bans and restrictions on the most leakage-prone and harmful types of plastic. Momentum was also building for a more radical cap on global plastic production. And on top of that, the gravitational forces of the treaty negotiations were pulling in new constituencies and stakeholders, and with them came an ever-expanding wish-list of issues to be addressed — from human health to human rights. The ambition-level was skyrocketing, and the purpose and thematic boundaries of the treaty, which had seemed relatively clear and manageable a year earlier, were becoming blurred.
Perhaps it was a concern with the ballooning scope of the treaty that made India wake up from their slumber. Making explicit what Saudi Arabia and others had thus far only insinuated, namely that there was a “link” between the European Union’s voting rights and the decision-making rule, a delegate participating remotely from New Delhi suggested that the possibility of adopting decisions “on substantive issues” by a two-thirds majority of countries be excluded from the rules of procedure.
“India has always been a strong supporter of decisions based on consensus”, the delegate said.
It was not clear why India had not brought this up earlier in the week during discussion on the rules of procedure — or even when the rules were first discussed in Dakar. Equally puzzling was India’s stance: Why would a country that takes a great deal of pride in “always [having] led from the front on environment issues”, advocate the adoption of a decision-making rules that would all but guarantee a least common denominator outcome of the negotiation process?
Whatever motivated India, officials at the Ministry of Energy back in Riyadh had reason to celebrate. Saudi Arabia had managed to keep the committee’s decision-making rule in play through the week, raising doubts about how, if ever, the committee could approve the text of the new treaty.
In what should have been seen as an omen, the Saudi representative said, in his closing statement: “We are all aware that any amendments to [the rule on the European Union’s voting rights] may require work on the rest of the section”.
Paris: Monday 29 May 2023 — Under pressure
In light of the ruffling experience in Punta del Este, one would perhaps have expected Meza-Cuadra and legal officer Trengove to have a plan for how to navigate the thorny issue of the committee’s decision-making rule as the second negotiation session kicked off in Paris. After all, they had left the committee in Punta del Este with the impression that the rules of procedure would be adopted in Paris.
But when Saudi Arabia — after a high-flying opening session and equally anticlimactic bureau election process — asked the chair to clarify whether the consultations he proposed to undertake would cover the draft rules of procedure in their entirety, Meza-Cuadra and legal officer Trengove appeared strangely unprepared. Officially, the chair’s plan for the session, as outlined in the session’s “scenario note”, had been to “move swiftly through the opening of the session” and launch substantive negotiations. He had not imagined, it seemed, that the tense and unresolved matter of the rules of procedure might actually resurface.
Clearly reluctant to re-open a plenary debate about decision-making, Meza-Cuadra attempted, as he had done six months earlier in Punta del Este, to defer. Promising “maximum efforts to try to settle this matter as quickly as possible”, he offered to engage “in consultations throughout the week” and keep the plenary “appraised of any progress that we are making”. As to Saudi Arabia’s question of what “this matter” really consisted of, he repeated that “the rules of procedure are being observed on a provisional basis and we have taken exception with [the rule on the European Union’s voting rights] and that is reflected in square brackets. It is on this basis that we have been working and shall continue to work”.
Was it enough? Not by a long shot. India, picking up where they left in Punta del Este, was predictably not prepared to accept this. They demanded, this time in person, that the committee’s decision-making rule be placed in brackets, “before we all move forward to negotiate on any matter, including the rules of procedure”.
And then more flags shot up in the room. In what seemed like a coordinated plan by a group of BRICS and Middle Eastern countries — possibly hatched at the Rotterdam meeting a few weeks earlier — China, Iran, Russia, Qatar, and Bahrain took the floor in quick succession to support India’s request. Cuba followed suit, while Uganda, in a surprise intervention, took the floor to say that “applying the rules of procedure provisionally does not make legal sense”.
Legal officer Trengove was repeatedly called upon to respond to the barrage of procedural questions fired from the floor. Always looking to precedent for guidance, Mr. Trengove attempted to remind the committee of its decision, made at the first session in Punta del Este, “to apply the draft rules of procedure on a provisional basis to its work.” Therefore, Mr. Trengove continued, “the draft rules of procedure apply to the committee’s work in its entirety [and have legal effect]”. Furthermore, he advised, the chair could not legally place the decision-making rule in brackets, as requested by India and other countries, as the committee had already taken “a decision on this matter”.
The biggest blow to Meza-Cuadra’s plan to settle the matter “as quickly as possible” came, however, from a fellow Latin American country. “We just can’t adopt a treaty text dealing with a global problem by a majority of the parties present and voting”, Brazil’s representative, Maria Angélica Ikeda, said. Recalling the number of votes cast during the bureau elections earlier in the day, she continued: “If we were to do this today […] we would have approved a treaty text with a required majority of 94 countries. I don’t think this is acceptable. I think we need everybody on board. We cannot have a text that only reflects the views of 94 countries to deal with a global problem”.
Meza-Cuadra had every right to be miffed at Ms. Ikeda’s statement. Back in Dakar, Brazil had expressed a preference for consensus-based decision-making but accepted that substantive matters could be voted on “when all other possibilities are exhausted”. Furthermore, in Punta del Este, Brazil’s representatives had remained silent. Why did they wait until the second session to raise these concerns?
Ms. Ikeda’s argument also appeared to be bordering on bad faith, effectively constructing a straw man from the chair’s initial proposal. Neither the chair nor anyone else involved in the negotiations had ever proposed that the committee “just adopt” a treaty “by a majority of parties present and voting”. On the contrary, the draft rules of procedure agreed in Dakar stipulated that the committee should continue to make “every effort […] to reach agreement on all matters of substance by consensus”. Voting would only become a possibility, “as a last resort” if and when “all efforts” to reach consensus had been exhausted. Ms. Ikeda was likely aware of this, as the chair had repeatedly, at that point, assured the committee of his commitment to “consensus-based decision making.”
Meza-Cuadra also had reason to be annoyed at the lack of support from the countries that, in Dakar and Punta del Este, had defended the voting option in the draft rules of procedure. Nearly an hour into the debate, the chair appeared increasingly isolated, and it looked like Saudi Arabia and the other countries demanding the committee’s decision-making rule to be placed in brackets would win out. The countries that wished to retain the voting option had clearly not expected the onslaught, allowing the opposing camp a chance to dominate the conference room.
“To be honest, I think we were a bit naïve. We thought they would focus on the EU question”, one of the negotiators would later admit.
Eventually, however, the freshly elected bureau member, Cheikh Ndiaye Sylla, launched the counter offensive, rejecting the Indian proposal outright. “I think everyone in the room really knows what this is all about”, the Senegalese representative started. “Now, let me tell you what I think consensus is. Consensus in fact kills democracy, it imposes unanimity. If only one or two countries are not in agreement, then the entire thing comes to a grinding halt. Under such circumstances, how can we make progress?”
Mr. Sylla, who had chaired the committee’s preparatory meeting in Dakar, admonished the countries that were preventing the start of substantive negotiations by raising a fuss over the rules of procedure. “The delegations that have taken the floor have expressed their desire to protect the environment. [But] when you want to protect the environment, you often have to set aside the national interest and really look at what is going to happen to the planet, and how we can preserve the planet for […] everyone”, he said, triggering a sustained applause from the many non-governmental observers who, watching the debate from the gallery, had become increasingly worried that the debate about the rules of procedure would never end.
Rushing to Senegal’s side, the European Union, Morocco, the United Kingdom, Peru, Norway, Nigeria, Ecuador, Canada, Uruguay, Chile,l, and Costa Rica took the floor to support the chair’s proposal to continue to provisionally apply the rules of procedure to the committee’s work without adding further brackets to the text. Switzerland made the point that “being able to vote as a last resort is often helpful to achieve consensus” while the United States questioned why “there appears to now be some confusion in the room about how this body operates”, given that the decision to provisionally apply the draft rules was taken by consensus at the previous meeting in Punta del Este.
While these interventions made clear that there was considerable support in the room for the chair’s initial proposal, they did little to settle the issue. “It was a strategic mistake by some of the ambitious countries to assume that this wouldn’t become a problem”, said Mr. Del Castillo. If anything, the divisions between those countries that wished to retain the voting option in the draft rules of procedure and those who asked for it to be placed in brackets deepened further throughout the afternoon. As Meza-Cuadra tried to close the meeting by proposing that he consult with the newly elected bureau and come back to the committee with options for how to move forward, the atmosphere got outright hostile.
Claiming — in defiance of legal officer Trengove’s logic — that any of the countries participating had “a right” to ask for additional brackets to be reflected in the draft rules of procedure, Brazil, in a hardball manoeuvre, said that “we are not going to contact groups, we are not considering mandates for draft text, we are not doing anything else until we see the brackets”. Saudi Arabia, in one of its many interventions, said that to “have the view of many, many countries in the room completely disregarded because the chair has a position to uphold is absolutely unacceptable”.
It took India, however, to bring the situation to a head. “Does a country have a right to speak?” the representative said in a surprisingly emotional point of order. “Can a chair extinguish the right of a party? We have seen […] the distinguished delegate of Saudi Arabia insisting that [the committee’s decision-making rule] be bracketed, and the chair is trying to rule that the right of a party will be taken over by a bureau? We have never seen such kind of multilateral treaty be negotiated or managed like this”.
As the shadows from the Eiffel Tower grew long and hard, an increasingly despertate Meza-Cuadra pulled out the last card from the chair’s handbook: The committee that they would soon run out of translation services, he warned. This allowed him to, after a painful day, to bring the meeting — if not the discussion — to an end.
Paris: Tuesday 30 May 2023 — Meltdown
“I would propose that we have a very quick recess to consult with some countries, really quick, and then we will come back to this”, Ms. Ikeda, Brazil’s representative, said late in the afternoon on the following day, Tuesday, 30 May. Negotiators had, at that point, been embroiled in a discussion about the rules of procedure for nearly thirty-six hours.
Since India’s outburst against Ambassador Meza-Cuadra late on Monday, more countries had picked a side in the procedural debate: Guatemala, Venezuela, Kuwait, Egypt, Oman and Bahrain had, it seemed, joined the coalition of countries wishing to prevent the committee to ever take a substantive matter to a vote.
A bigger group of countries, including Eswatini, Congo, South Korea, Rwanda, Paraguay, New Zealand, Cook Island, Micronesia, Moldova and Kenya had defended the rules as drafted in Dakar, pointing out the need for a voting option as a last resort, “when all elements of good sense and reason have failed […] and consensus is being utilized as a tool in the furtherance of agendas that are incongruent with our core objective”, as Mr. Christian from Antigua and Barbuda eloquently put it.
As any good quarrel, the debate had, throughout the day, turned into a dispute about what had been said and agreed, or not agreed, in the past. Doubling down on legal officer Trengove’s invocation of precedent from the day before, the committee’s executive secretary, Joyti Mathur-Fillip, had, earlier in the day, attempted to set the record straight by quoting from the report from the last session.
Reading from the report, Ms. Mathur-Fillip had recounted that the committee agreed in Punta del Este “that the chair would hold informal consultations on the bracketed text on [the rule on the European Union’s voting rights] of the draft rules of procedure with a view to reaching agreement, and that pending such agreement the draft rules of procedure would apply to its work on a provisional basis”. Further, she had said, the “committee agreed to defer the adoption of the draft rules of procedure until its second session to allow for further consultations on the matter, on the understanding that, pending their adoption, the draft rules would continue to apply to its work on a provisional basis”.
The executive secretary had, for unknown reasons, initially decided not to produce a substantive summary of the committee’s session in Punta del Este. As the discussion in Paris descended into a dispute over what had been said and decided at the previous meeting, Ms. Mathur-Fillip was likely relieved that she had given in to pressure from negotiators and, after some time, published a summary of the discussions.
Yet, Mathur-Fillip’s report recital had done nothing to quell the debate. If anything, it had inflamed it further. With reference to their belated request to bracket the committee’s decision-making rule in Punta del Este, India had questioned why this request was not reflected in Mathur-Fillip’s report. Clearly suggesting foul play from Ambassador Meza-Cuadra and the secretariat, India had said that they believed “there were other reasons” for the omission of this request from the report.
Saudi Arabia, too, had criticized Mathur-Fillip’s report for not accurately reflecting what had happened in Punta del Este. The report from the meeting in Punta del Este, Ms. AlJishi had said, “was brought to us, as committee members, with many, many, many gaps that we trusted the secretariat to fill out. We consistently have been hearing the legal officer use words like, ‘a decision was made’ [in Punta del Este]”, she continued. “So, my question is: Where is the decision text?”
“We showed extreme flexibility and trust”, she had continued in a later intervention, “when we chose to be flexible and move on [in Punta del Este]. It seems, right now, that our trust was sorely misplaced”.
Ambassador Meza-Cuadra’s problem was that Saudi Arabia was, at least partly, right. The secretariat’s report from the committee’s session in Punta del Este had come late and, perhaps for that reason, did not reflect all views expressed during the session.
Digging further into the past, some countries had taken advantage of the absence of a formally accepted account of the negotiation process to construct a misleading narrative of what had happened at the committee’s preparatory meeting, with Russia, Iran and Egypt alleging that the committee’s decision-making rule “had not been discussed” one year earlier in Dakar.
While it was true that the debate about the rules of procedure in Dakar had focused extensively on the discrepancies between the rules of the mercury negotiations and the rules proposed by UNEP’s law division, and the United States’ challenge to the European Union’s voting rights, the committee’s decision-making rule had indeed been discussed, notably on 31 May and 1 June 2022. In that debate, Egypt — like Saudi Arabia — had even agreed that, in line with the rules for the negotiation of the Minamata Convention, substantive matters could be voted upon “as a last resort”.
Throughout the day, the stalemate over the rules of procedure had forced countries to adopt increasingly radical positions. Micronesia had suggested that the question of whether to allow voting as a last resort itself be put to a vote. At that point in the debate, India, Saudi Arabia, Brazil, China and other countries had primarily sought to prevent the committee from voting to adopt the treaty and other substantive decisions. No one had contested the rule allowing for procedural decisions to be put to a vote.
“Is it your intention to apply [this rule] to resolve this impasse?” the Micronesian representative, Dennis Clare, had asked the chair — twice — without receiving an answer.
Faced with the possibility of a vote on the adoption of the rules of procedure, China had responded by issuing thinly veiled threats to leave the negotiation process. If this rule is applied, “this will lead many countries to be very hesitant to participate actively”, China’s representative had said, adding that “if the chairman continues to ignore the serious concerns expressed by many delegates” with respect to the decision-making rule, “this could jeopardize our future negotiations”.
The atmosphere in the conference room was sombre when, late in the afternoon, Ms. Ikeda, Brazil’s representative, requested “a very quick recess to consult with some countries”. It was clear, at that point, that the divisions over the committee’s decision-making rule were simply too deep for the conference to begin negotiations on the actual content of the treaty.
Ambassador Meza-Cuadra’s proposal to settle the issue through informal discussions over lunch had produced nothing but a more elaborate account of the disagreement in the room. His attempts to move things forward had repeatedly landed him in the crossfire between negotiators frustrated with “the waste of energy” spent on procedural issues, as Mexico put it, and other negotiators, feeling “disregarded, completely overlooked”, as Saudi Arabia complained when they were bumped down on the list of speakers to allow negotiators that had not yet spoken the opportunity to express their views on the matter.
“We agree with suspending the meeting for fifteen minutes”, Ambassador Meza-Cuadra said in response to Ms. Ikeda’s proposal, looking relieved.
There are many ways to describe what occurred next in the plenary hall of the UNESCO Headquarters in Paris, but a “quick recess” is not one of them. In fact, one and a half hour would pass before the committee reconvened, during which fluid crowds of diplomats huddled in the corners of the conference hall. Nobody but those engaged in the huddle knew what was going on.
But as Meza-Cuadra, after “the longest fifteen minutes” he had ever experienced, took the floor to “propose that these consultations continue today at eight thirty p.m.” it was whispered in the corridors that the contours of a plan for how to move things forward had been hatched during the recess.
Nobody raised their flags or requested a point of order when the Ambassador, after a long and, for many, frustrating day that should have been spent identifying elements of the plastics treaty, closed the meeting.
Paris, Wednesday 31 May 2023: Diplomatic wizardry
Twelve hours later, it became clear that an “interpretative statement” to resolve the stand-off over the committee’s decision-making rule had “emerged as a way forward”, as Brazil said when presenting the outcomes of the previous night’s consultations.
How the idea of such a statement came about and who proposed it will likely forever remain an open secret. But as the committee’s chair, Ambassador Gustavo Meza-Cuadra, a few minutes later uttered the magic words, “it is so decided”, it was evident that the statement had had the intended effect: After nearly forty-eight hours of procedural dispute, the path looked cleared for substantive discussions.
The statement, discussed by negotiators until the early hours of Wednesday, may well become a textbook example of constructive ambiguity. It reads, with reference to the rule on decision-making on substantive issues:
“The INC understands that, based on discussions on the INC draft rules of procedure, there are differing views amongst INC members on rule 38.1 and its reflection in the report of INC1. Therefore, the provisional application of rule 38.1 of the draft rules of procedure has been a subject of debate. In the event that rule 38.1 is invoked, before the rules are formally adopted, members will recall this lack of agreement.”
A clever agreement, in other words, to disagree. It was not surprising that the members of the High Ambition Coalition and the other countries eager to start substantive negotiations went along with it. Legally, the statement changes nothing. The draft procedural rules, agreed upon during the committee’s preparatory meeting in Dakar one year ago, will continue to apply, and countries can still request a vote on substantive matters as a last resort.
Should the need arise, “we will think about” the interpretive statement, as one negotiator said. “But we have not changed anything. Voting remains possible”.
The acquiescence of Saudi Arabia, India, China, Russia, Brazil, and the other countries that had sought to re-open the debate about the committee’s decision-making rule, was, in light of this, more surprising. In return for their efforts, these countries received nothing more than a formal acknowledgment of their disquiet with the possibility of taking substantive matters to a vote. Perhaps worried that they had been short-changed in the Parisian night, India’s representative took the floor to offer an interpretation of the interpretative statement. “All decisions of substantive issues shall be taken by consensus” he stated, “and the provisional application of [the decision-making rule], which is debatable, shall not be applied”.
Perhaps driven by the same concern, Saudi Arabia also appeared agitated when the committee’s chair, later on the same day, prematurely gavelled the conference into contact groups to start discussing treaty content. Wishing initially to include a discussion about the “guiding principles” in the mandate of one of the contact group, Saudi Arabia had, after push-back from the chair and several other countries, proposed that principles be discussed at the committee’s next session in Nairobi.
When the chair — prodded by Mexico’s representative, who, in an unruly intervention, had incited all delegates to just “stand up and go to contact groups” — adjourned the meeting without looking to check whether any delegations had asked for the floor, a Saudi representative, feeling neglected, rushed to the podium to challenge the chair’s decision.
More and more representatives joined the fray, as Saudi Arabia tried to force the chair’s hand. Saudi Arabia succeeded, ultimately, in sending the conference through yet another procedural hoop, delaying the start of contact group discussions for an additional hour. But at long last, after receiving another spout of reprimands from Russia, India and Saudi Arabia, Ambassador Meza-Cuadra could, two days after schedule, allow substantive treaty negotiations to begin.
Postscript: Will we always have Paris?
The much-anticipated release, on 4 September 2023, of the zero draft of the treaty on plastic pollution shows that there exists, behind all the obfuscation and dilatory tactics, a good faith effort to identify the rules and regulations required to tackle the plastic pollution crisis. When nature speaks, some countries, at least, are prepared to listen.
On the final day of the session in Paris, Ambassador Meza-Cuadra was given a mandate to prepare, with the assistance of the secretariat, “a zero draft of the international legally binding instrument”, guided by the views expressed at the committee’s first and second sessions. The zero draft seeks to give legal form to the potential options for treaty elements that were discussed, at long last, over two days — and nights — in Paris.
As negotiators gather for the third negotiations session in Nairobi, Kenya, from 13 until 19 November 2023, perhaps the biggest question is whether the zero draft will be accepted — as suggested by Ambassador Meza-Cuadra — as a basis for further discussions. At face value, there appears to be good reasons for believing that it will.
Since the beginning of the negotiation process, countries have promoted two different models for the plastics treaty: While a large group of countries, including the members of the High Ambition Coalition, have expressed support for a standard multilateral environmental agreement with common and universally applicable rules, a sizeable minority, including the United States and Saudi Arabia, have instead favoured the development of a loose, multilateral framework for countries to communicate their national-level policies, akin to the Paris Agreement on climate change.
The zero draft appears to reflect, through its various options, both of these models. As Aaron Z. Wu, a member of the IUCN Commission on Environmental Law, puts it, “the Zero Draft’s spectrum of options contain various permutations of prescriptive (or concrete) and voluntary (or normative) approaches”. For example, the zero draft suggests that “problematic and avoidable plastic products” are either phased out and prohibited according to a common timeframe or dealt with through an undefined set of “measures” and “timeframes” determined at the national level.
Because it is compatible with both a standard multilateral agreement and a nationally driven policy framework, it is quite likely that the zero draft will be accepted as a starting point for further talks in Nairobi. But by the same token, the zero draft defers the decision that will have to be made at one point in this process: what kind of treaty are the countries involved in these negotiations going to adopt? A treaty with common rules for all parties, or a nationally driven policy framework? As this decision cannot be postponed forever, the relative non-committal character of the zero draft begs the question of when and, indeed, how, this decision will be made.
In light of the meltdown over the committee’s decision-making rule in Paris, Ambassador Meza-Cuadra and countries committed to advancing the negotiations will likely seek to use the session in Nairobi to reduce polarization and restore trust amongst negotiators. One may hope that some countries that found themselves on opposing sides in the procedural debate in Paris may, once substantive negotiations get under way, realize that they have in fact a common interest in figuring out how, through global regulations and joint efforts, they can address the transboundary problem of plastic pollution together.
There is a risk, however, that Saudi Arabia and other countries worried that they may constitute a minority in the negotiations, will seek to further consolidate the alliance of BRICS and Middle Eastern countries that were mobilized around the committee’s decision-making rule in Paris. As long as the rules of procedure remain unadopted, countries that seek to hold the process in abeyance may opt to question the legal implications of the interpretive statement or even refuse to move forward until the committee has adopted its rules of procedure. India, after all, stated in its closing intervention in Paris, that “it is of the benefit of parties that the rules of procedure are adopted at [the committee’s third session]”. How hard India and other countries will press this point in Nairobi remains to be seen.
What is clear, however, is that there is a link between substantive and procedural issues, and that the adoption of a meaningful treaty on plastic pollution therefore requires a procedural path forward. There can also be little doubt that the meltdown over the rules of procedure in Paris made that path all the more difficult to navigate. Unless countries are willing to accept a weak, lowest common denominator treaty, the thorny question of the rules governing the committee’s decision-making will almost certainly resurface at one point in the process.
In Nairobi, a dispute over the treaty’s principles and scope may, however, be a more likely showstopper than the committee’s decision-making rule. Already in Punta del Este, Egypt called for a “strategic discussion on scope, objectives, approach and structure, as well as of course key definitions, before we can have meaningful discussions on potential measures”. The Saudi request, made towards the end of the procedural debate in Paris, for a consideration of “guiding principles” led the committee to call for submissions of views on “elements not discussed at the second session, such as principles and scope” and to convene a “preparatory one-day meeting” to discuss these matters. It seems likely that the preparatory meeting, which will take place two days before the third session opens in Nairobi, will be forced to conclude that there are differing views amongst participating countries on what should constitute the principles and scope of the new treaty.
Based on their behaviour so far in the negotiations, it would not be particularly surprising if Saudi Arabia and other countries wary of global rules to tackle plastic pollution decide to exploit a dispute about the principles and scope of the treaty to re-open a discussion the committee’s mandate, as set out in the resolution adopted by the UN Environment Assembly in March 2022.
Whether a strategy to take the plastics treaty negotiations back to square one will succeed, will likely depend on other countries’ ability to get the measure of such a plan, and whether they will be able to distinguish and drive a wedge between those countries that have legitimate concerns about the expanding scope of the treaty, on the one hand, and those that are primarily in the business of delaying the process, on the other.
The meltdown over the committee’s decision-making rule in Paris should, in this respect, be seen as a warning not to underestimate certain countries’ willingness and ability to upend the negotiation process, especially if they feel that they have been neglected.
By Magnus Løvold and Torbjørn Graff Hugo
All quotes in this article are, unless otherwise stated, based on interviews conducted by the authors or the webcast of the first and second session of the Intergovernmental Negotiation Committee (INC) to develop a legally binding instrument on plastic pollution. Russia, Saudi Arabia, India, Brazil did not respond to requests to be interviewed for this article. All photos are used with permission by IISD/ENB. Any questions about this article may be addressed to Magnus Løvold at ml@intlaw.no
