Dispatch from the plastics treaty negotiations: Can consensus ever justify such wretched brackets?
OTTAWA, 30 APRIL 2024: There are two things that lurk within the dark and shadowy places of the intergovernmental committee tasked by the UN Environment Assembly to end plastic pollution: Intransigence and a paralysing allegiance to consensus. As to which do the most harm to the prospects of crafting an effective plastics treaty, they are, most likely, equally guilty.
Whether the fourth round of the plastics treaty negotiations in Ottawa will be remembered as a step forward, a step backward, or no step at all, depends, as always, on one’s expectations. The chair of the meeting, Ambassador Luis Vayas of Ecuador, appeared, for one, to have achieved what he wanted when he gavelled the meeting to a close in the early hours of Tuesday this week.
Up until the final few hours, the meeting in the Canadian capital had unfolded almost exactly as set out in the chair’s plan. The byzantine revised draft treaty text that had been compiled in Nairobi five months earlier had been boiled down to a significantly shorter — albeit perhaps no less bewildering — text.
In an impressive show of strength, Ambassador Vayas even managed to secure a mandate for so-called intersessional work. In the odd logic of the plastics treaty negotiations, the question of what, if anything, negotiators should do between the formal negotiation sessions had turned into a proxy debate about the crucial question of what the new treaty should — or should not — cover. In previous sessions, the committee had, due to wildly different views about whether the treaty should regulate plastic raw materials, failed to agree on a way forward.
But as Vayas, on the eve of the committee’s finale, introduced a carefully balanced proposal to establish one technical expert group on financing and a second one on plastic chemicals and plastic products, it looked as if he had found a way to thread a needle between the committee’s opposing factions. Surprisingly, China and India, both of which had previously been highly reluctant to consider plastic chemicals as part of the new treaty, expressed unqualified support for the chair’s proposal.
Even Russia, blamed for having prevented the committee from agreeing on a mandate for intersessional work during the session in Nairobi five months earlier, held back from criticising the draft decision. Vayas’ extensive backroom consultations had, it seemed, paid off.
But if the support for Vayas’ intersessional work proposal suggested a new state of play in the plastics treaty negotiations, the scene that unfolded during the last hours of the session in Ottawa offered a painful reminder of the committee’s complicated relationship with decision-making. Just when Vayas’ was about to gavel his proposal through on Monday evening, the conference descended into an all too familiar chaos.
Perhaps wary of what Vayas’ might have offered China and India in exchange for their support, a group of more than thirty-one countries mounted a last-ditch push to keep not only plastic chemicals, but global production of all primary plastic polymers in as part of the discussions.
Patrick Umuhoza, a delegate from Rwanda, expressed his “profound disappointment that the proposal for intersessional work has decided to ignore the elephant in the room”.
But despite Umuhoza’s dismay, it quickly became clear that Rwanda would not object to the chair’s proposal. However disappointed they might have been, they were not, it seems, disappointed enough to block the chair’s proposal.
More troublesome, the United States took the floor to request “a very small, targeted change” to the draft decision.
The chair had initially suggested that the second expert group “propose criteria on plastic products and chemicals of concern”. Throughout the week, a set of proposals to ban problematic plastic products and plastic chemicals had received considerable backing.
Concerned, most likely, that the expert work could strengthen the case for global bans on plastic products and plastic chemicals, the United States — sceptical as always of outsourcing rule-making to an international body — proposed instead that the group “propose recommendations, including criteria,” on plastic products and chemicals of concern.
A “very small” textual compromise, indeed. But the future structure of the plastics treaty resides, like the devil, in the details—and the United States knows this. While the chair’s original proposal would have engaged the committee in a discussion about possible common criteria for all states to adhere to, the U.S. proposal left it open whether the treaty should contain any criteria at all—leaving the door ajar for a weak, nationally driven, policy framework modelled on the Paris Agreement on climate change.
Vayas could perhaps, at that point, have stood his ground and defended his own proposal. Instead, he decided to suspend the meeting, allowing the United States and Saudi Arabia to seize control of the room.
As a result, the ghost of the committee’s disastrous session in Paris eleven months earlier made a reappearance. The chair’s request for “some minutes” to do a quick consultation broke down into an hour-and-a-half-long floor huddle — a messy and a uniquely non-transparent form of negotiation, where the biggest, most vocal and most intransigent countries tend to carry the day.
As the chair, seven hours after the scheduled end of the meeting, ordered the buzzing delegates back to their seats, the United States, Saudi Arabia, Brazil, and — rather oddly, given their stated support of the chair — Switzerland, presented an alternative proposal, more in line with the U.S. suggestion.
But the European Union wouldn’t have it. “The more we twist this around, the less this becomes an operational guidance for the expert group”, Hugo-Maria Schally, the European Union’s lead negotiator, said. “We suggest that we go back to the original proposal”.
When the committee finally emerged, after another hour-long huddle, with agreement to request the expert group to “identify and analyse criteria and non-criteria based approaches” to plastic products and chemicals of concern, the growing sense of control and confidence that had marked the meeting’s first few days, had all but evaporated.
The United States had, through their clever little games, effectively blocked the chair’s attempt to set the committee on a path towards the development of a set of global criteria for plastic products and plastic chemicals. Even more problematically, they had, by seizing control of the room, undermined Vayas’ authority over the committee.
The flare-up over the proposal for intersessional work is a sign of what to expect when the troubled committee meets to conclude the new treaty in Busan later this year. While the intersessional work programme agreed in Ottawa provides important pointers about the scope and legal form of the future treaty, the status of the actual treaty text remains mile-high up in the air.
The revised draft text that had been compiled in Nairobi five months ago was already a “choose-your-own-adventure” document, with hundreds of “options” for treaty provisions. By the end of the meeting in Ottawa, each text paragraph had disintegrated into a surreal branching storyline.
Some negotiators would, on their way home from Ottawa, claim that they engaged in “text negotiations”. In reality, the meeting consisted of little more than a mechanical copy-pasting exercise, in which negotiators converted the “options” they had proposed for inclusion in the revised draft text into a total of 3686 text brackets.
Given that it took the committee more than a year to agree on a programme for technical intersessional work, it is hard — perhaps impossible — to see how even a fraction of the brackets can be resolved before the committee is scheduled to wrap up its work in Busan in December.
It is easy to forget that the manner in which the plastics treaty committee conducts its business is not the only method of treaty-making. “This is multilateralism at its best’’, Jyoti Mathur-Filipp, the committee’s secretary said in her closing statement on Tuesday morning. In fact, the brackets bonanza and messy indecisiveness on display in Ottawa represent multilateralism near its absolute low point.
There are alternative ways to solve global problems. In October 1996, the Foreign Minister of Canada, Lloyd Axworthy, invited representatives of fifty countries to a very different conference in Ottawa. Axworthy, alarmed by the growing evidence of harm caused by the extensive use of landmines around the world, had grown impatient with the inability of the parties to the Convention on Certain Conventional Weapons(CCW) — a consensus-driven forum in Geneva — to deal with the problem.
Fully aware that it would spark strong reactions, the Canadian Foreign Minister, in a remarkable moment of multilateral leadership, issued a surprise challenge to the participating countries to conclude a treaty banning landmines within a year. Freed from the shackles of consensus and intransigent negotiators, the Anti-Personnel Mine Ban Convention was concluded in September the following year, leading the Nobel Committee to award the 1997 Nobel Peace Prize to the International Campaign to Ban Landmines. 28 years later, 164 countries have joined the treaty, which continues to save countless of lives and limbs around the world.
The Ottawa process to negotiate a treaty banning landmines is, arguably, multilateralism at its best. After the fourth session of the plastics treaty negotiations, it is becoming increasingly clear that Ambassador Vayas and negotiators’ serious about delivering an effective treaty on plastic pollution will have to start thinking outside the narrow confines of multilateral environmental diplomacy.
The point of treaty-making is not to get everyone to agree. The point of treaty-making is to develop the rules needed to solve a common problem, and to work over the following years and decades to get a critical mass of countries to adhere to these rules. Countries keen to prevent the plastics treaty from becoming a lowest-common-denominator document will, at one point, have to break free from the stymieing norms of environmental negotiations and the clever little games of the United States.
As a model of modern treaty-making, the mine ban treaty is a reminder that remarkable results can be achieved and that treaties can have a significant long-term impact, even on highly contentious issues. But to get there, a willingness to ditch consensus and leave the least ambitious countries behind will be required.
If they don’t, we might be staring down the barrel of a treaty with empty promises, void of accountability, which three decades henceforth may produce a second agreement, which in turn — like the Paris Agreement on climate change — doesn’t solve the problem either.
POSTSCRIPT: It has recently come to the author’s attention that the U.S. delegation to the plastics treaty negotiations issues an internal “Bridgerton-alert” every time he releases a new post, likening his dispatches with the scandalous missives of Lady Whistledown. The author would like to clarify that any resemblance to Lady Whistledown’s letters is purely coincidental, though perhaps a testament to the captivating allure of their readership. Rest assured, no Regency-era romances were harmed in the making of this post, though a fair amount of plastic may — or may not — have been recycled.
