As the third round of the plastic treaty negotiations wraps up in Nairobi, one thing is clear: Someone must go

NAIROBI, 18 NOVEMBER 2023: Depending on one’s perspective, the conference room was either half empty or half full when delegates, late on Friday evening, gave themselves a rare round of applause. The group mandated to review the core provisions of the new treaty on plastic pollution had just managed to capture the magnitude of their disagreement in a single document.

Whether that was an achievement worthy of applause depends, again, on one’s perspective.

From one angle, the third round of the plastics treaty negotiations has shown that it is possible for countries to overcome their differences and make progress across deep political fault lines. “The Nairobi spirit” — a term used to describe the tradition of environmental diplomacy to steer clear of politics — is, in a world marked by geopolitical rivalries and growing tensions, not dead yet.

The zero draft of the treaty that had been prepared in advance of the meeting by the chair, Ambassador Gustavo Meza-Cuadra, was accepted as a basis for discussions, after Iran, Russia and Saudi Arabia made a concerted but ultimately unsuccessful attempt to derail the proceedings by rejecting the draft “as a starting point” on Monday.

As a result, delegates from the 163 countries present in Nairobi have, since Tuesday morning, spent their time in substantive negotiations on the provisions outlined in the zero draft — including by setting out their own views of what the treaty should, and should not, do through a staggering 416 written submissions and countless oral statements.

Throughout the week, moreover, a sizeable majority of ambitious countries have — more or less explicitly — rallied around a vision of what needs to be done to end plastic pollution: Phase out the plastic product categories, chemicals and polymers that have the highest risk of ending up as harmful pollution in the environment. Develop a decision-making procedure that will allow the list of these high-risk categories to expand over time. And prohibit these categories from being imported from, and exported to, countries that refuse to join the treaty. The strong support for these rules is, from this perspective, a clear sign of progress.

But from a different angle, the Nairobi round of the plastics treaty negotiations could go down in history as a momentous waste of time and effort. The zero-draft treaty that aimed to give structure to the negotiation session in Nairobi was already at the outset a “choose-your-own-adventure” document, with multiple options for treaty elements along the “full life cycle” of plastics. The draft text, which before Nairobi counted some thirty pages, will, as the session draws to a close, turn into a horror story nearly one hundred pages long.

The seven-days meeting in Nairobi has, from this perspective, merely served to gloss over the fact that some of the countries involved in these negotiations — notably Iran, Russia and Saudi Arabia — do not agree that plastic pollution is a problem that merits global regulation. Fuelled by their domestic oil and plastic industries — and possibly backed by international petrochemical companies — these countries are clearly not in the business of negotiating a treaty to solve the plastic crisis. Rather they seem bent on ensuring that the negotiations come to nothing.

There is a legal term for this kind of behaviour: Bad faith.

Deterred by the oil producers’ thinly veiled threats to abandon the negotiation table unless their demands are met, the ambitious majority has, over the past week, found themselves embroiled in a misguided attempt to sidestep the political and economic realities at play. Along the way, they seem to have lost the sense of priority required for the process to succeed.

The ambitious majority could have spent their time in Nairobi fighting for a treaty structure that enables the development of common and universally applicable rules, a decision-making rule that allows for their adoption, and a scope that would focus — and therefore delimit — the negotiations around plastic pollution as a transboundary problem requiring international cooperation.

Instead, they have engaged in lengthy discussions about a laundry list of potential measures that will, even if implemented, only have a marginal impact on plastic pollution. They have also tacitly accepted a consensus decision-making rule that leaves the least ambitious country in control of the pace of the process.

Will the third round of the plastics treaty negotiations be remembered as a success or a failure? If the aim of this process is merely to “complete negotiations by the end of 2024 on an international legally binding global instrument on plastic pollution, including in the marine environment”, the Nairobi round may, perhaps, be deemed at least moderately successful.

But if the aim of this process is to develop a treaty that will put us on a path towards an end to plastic pollution, the Nairobi round is about to turn into an unmitigated disaster. With no clear procedure for decision-making, the task of moulding the the revised draft — if it ever sees the light of day — into anything resembling an effective treaty will be well nigh impossible.

As the session edges towards its conclusion, the question is not whether Iran, Russia and Saudi Arabia will dig into their dilatory toolbox to prevent the committee from adopting an outcome that could take us closer to the adoption of an effective treaty. They will.

The big question is whether the ambitious countries will face up to the fact that these countries are negotiating in bad faith — and act accordingly.

Ending plastic pollution does not require the prior consent of all states. But it does require ambitious countries to prioritize their efforts and muster the courage to move ahead, even if those least willing to join stay behind. A treaty on plastic pollution can — and will — be effective, even if the largest oil producers refuse, initially, to join.