Masters of complications — How the plastics treaty negotiations produced a Frankenstein document
NAIROBI, SUNDAY 19 NOVEMBER 2023: The chair of the conference had a plane to catch. The clock in the time-worn conference room of the United Nations complex in Nairobi was edging close to midnight, as the United States took the floor.
“Thank you, Mr. Chair and thanks to you and colleagues for your indulgence,” John Thompson, the head of the US delegation started.
Tick-tock, tick-tock.
Legal adviser Gene Smilansky slid a piece of paper in front of Thompson while he spoke. Six months earlier, Smilansky had masterminded a seemingly magical solution to the committee’s procedural stand-off at the previous session in Paris. Now, he was pointing out words for his boss to make sure that their intention would not be lost on the audience.
“What I would like to do, Mr. Chair, is to request that you seek agreement of the room to reopen agenda item number four, specifically as it relates to intersessional work”, Thompson continued. “And the reason we’re making this request is we feel like the group had made some pretty significant progress, and we were close to reaching an agreement. So that would be our request, to reopen item four, so we can do further work on intersessional work. That’s our request to you, chair”.
Flightradar24 showed that the chair’s plane had arrived and would soon be ready for boarding from Jomo Kenyatta International Airport. The committee that the Peruvian ambassador had been elected to chair had passed its mid-point. Rain was pouring down over the Kenyan capital, and time was running out, in more sense than one.
Normally, late on a Sunday night, Ambassador Gustavo Meza-Cuadra might have been absorbed in a collection of César Vallejo’s poems — one of his favourites — in the Peruvian residence on the edge of Rock Creek Park in Washington D.C. But this month had allowed little time for literary pleasures.
A week before he opened the third round of negotiations on a plastic pollution treaty in Nairobi, Meza-Cuadra had — for reasons that had nothing to do with plastic pollution — found it necessary to submit his resignation as Peru’s ambassador to the United States.
If the lead-up to the third round of negotiations had been hard on the Ambassador, the seven days of talks in Nairobi had been no less gruelling. After the distressing meltdown over the committee’s decision-making rule during the previous negotiation round in Paris, Meza-Cuadra and his team had been hard at work, trying to refocus the easily distractible committee around the question of what the new treaty on plastic pollution should actually do.
The Ambassador’s zero draft treaty, released six weeks prior to the Nairobi session, outlined in the clearest terms possible the real choices that governments would have to make to deliver on the mandate, adopted by the UN Environment Assembly in 2022, to end plastic pollution. The text had provided hope that the committee would move on from grand-sounding rhetoric and procedural bickering to, at long last, get to work on the actual treaty text.
In a different world, perhaps, the third round of negotiations on a plastic pollution treaty could have been a focused discussions about the merits of the options outlined in the zero draft. But in the malfunctioning field of environmental diplomacy, the debate about Meza Cuadra’s zero draft had instead descended into a frenzied intergovernmental Miro board exercise.
Throughout the week, a total of 470 alternatives to Meza-Cuadra’s options had been submitted by the 160 countries that participated in the meeting. The result? A bewildering “revised draft text” with 105 options for treaty provisions, 96 alternative options for specific draft text and 1771 square brackets. After seven days in the Kenyan capital, Meza-Cuadra’s zero draft had been hacked into so many pieces and variations that the revised outcome, once reassembled by the committee’s secretariat, would be described, by some negotiators, as an unmanageable “Frankenstein document”.
Worryingly for those that had hoped for a “comprehensive” treaty with rules and regulations along “the full life cycle of plastics”, a “no text” option had been inserted into 12 of the 18 proposed control measures in the treaty — meaning that two thirds of rules and regulations in Meza-Cuadra’s zero draft had been rejected outright by at least one country, including any and all of the options, however weak, to regulate the drivers of plastic pollution.
Meza-Cuadra would play it nice, later on, saying that his team had expected this outcome. “We were looking to delegations for their input on the zero draft, because our draft was kind of an ideal document. But we knew that there would be changes, additions, and critiques”, he said.
For others, the revised draft text was a nightmare come true. “The worst-case scenario”, Hugo Maria-Schally, the European Union’s lead negotiator had said in an interview ahead of the third session, “is that we all start working on the options, the text mushrooms from thirty to one hundred pages, and at the end members insist that we continue to use that text for negotiations, which is completely unmanageable”.
It had been expected that Meza-Cuadra’s zero draft would receive rough treatment in Nairobi. Since the committee’s first session in Punta del Este a year earlier, a handful of oil and plastics producing countries, possibly concerned about how a plastics treaty may affect their domestic industries, had done what they could to derail the process.
In the committee’s previous sessions, the spoiler group had launched a procedural war on the committee’s decision-making rule. This time, they had taken aim at Meza-Cuadra’s zero draft. No sooner had the Ambassador introduced the text, when Iran, on behalf of what they called a “like-minded group” of countries, demanded that the draft be put aside and replaced by an alternative “updated zero draft”.
“It is clear”, Saudi Arabia had chimed in, “that the [zero draft] lacks the needed balance”. Russia had been even more direct, insisting that the zero draft “cannot be considered as a starting point for further negotiations”.
The biggest, though more veiled, blow to Meza-Cuadra’s zero draft had, however, been delivered by the United States. In a two-faced move, the US representative had claimed that while they supported “using the zero draft text […] to progress our discussion”, any “additions”, “deletions”, or “modifications” that countries may propose should be “treated on an equal basis to the zero draft”. There should be “no presumption in favour of any particular wording from the zero draft over alternative approaches”, they had said.
In contravention of established practice in treaty negotiations, whereby a zero draft is granted precedence as a basic proposal, the United States were, in effect, propping up the like-minded group’s sabotage operation: Meza Cuadra’s zero draft, despite having been requested by the committee, based on views expressed by all sides during the previous two sessions, should be granted no special status.
If countries seeking to undermine Meza-Cuadra’s zero draft had intended to throw the process towards a plastics treaty into chaos, they got what they wanted. Perhaps unsure about the level of backing he would get from the countries that had, six months earlier, encouraged him to produce a zero draft text, Meza-Cuadra made no attempt himself to defend the status of his own text.
More surprisingly, the 64 members of the High Ambition Coalition — a cross-regional group of countries, including all members of the European Union, committed to “end plastic pollution by 2040”, did not put up much of a fight either. With hindsight, the absence of a coordinated push-back from this group seems peculiar. Meza-Cuadra’s zero draft reflected, amongst its options for treaty text, all of the coalition’s core demands. In the revised draft text, these demands had all but drowned in a sea of complexity.
When the head of the US delegation, John Thompson, took the floor, four hours past the scheduled end of the meeting, to request “further work on intersessional work”, Meza-Cuadra’s team must have suspected that the committee was nowhere close to reaching agreement — and that Thompson was really just playing to the gallery.
The problem was not that countries disagreed on the need to discuss the technical aspects of the new treaty. As the mutilation of Meza-Cuadra’s zero draft demonstrated, the problem was of a more fundamental nature: negotiators could not agree on what these key elements of the new treaty were — and therefore what intersessional work should be about.
In fact, the prospects for the committee agreeing on a programme for intersessional work might have been doomed ever since the United States and other oil and plastics producing countries had refused to give Meza-Cuadra’s zero draft precedence over any alternative text proposals — including the many “no text” options. Without a common reference point, a basic proposal, to guide negotiations, the debate about intersessional work had turned into a proxy debate about the scope of the new treaty.
While a large majority of countries, in line with their preferred treaty proposals, had expressed support for technical intersessional work on a wide range of so-called upstream measures, including primary plastic polymers, chemicals of concern and problematic plastic products, Russia and other members of the like-minded group had pushed for intersessional work to focus only on so-called “non-contentious” issues — meaning treaty elements that they had not themselves, by inserting a “no text” option into the revised draft text, objected to.
It had been “really awful”, one negotiator later said, reflecting on the debate. “We went around and around in circles”. After more than thirty-six hours of discussions about intersessional work, including a cramped, last-ditch attempt to hammer through an agreement in one of the smaller meeting rooms of the UN compound in Nairobi, exhausted negotiators had, in the end, been forced to abandon the pursuit.
“At the end of the day, after we deliberated extensively, the group could not get a consensus”, Danny Rahdiansyah of Indonesia had reported back to the plenary.
Accounts would later differ about what had actually happened during those last moments of the third round of treaty negotiations in Nairobi. Some of those participating in the talks felt they “were close to an agreement on intersessional work”. Others reported that divisions had widened throughout the evening, especially between the like-minded group and certain Pacific Islands countries.
It might have been a genuine belief in the possibility of reaching an agreement that drove the United States to request that the debate about intersessional work be reopened. More likely, though, it was an attempt to place the blame for the stalemate on someone other than themselves. If that was Thompson’s intent, he achieved what he wanted.
The story of the Nairobi round of the plastics treaty negotiations would, in the end, become one of failure and frustration. Responsibility for the failure would be placed with those countries that objected to taking the debate about intersessional work on another merry-go-round in the Kenyan night.
Predictably, Russia, untroubled by reputational damage, happily took the bait. “We object to the proposal of the United States”, the Russian representative said. In the end, Saudi Arabia, too, felt the need to register its objections: “things are closed, and we would like it to be that way. We are not in support of opening it again”, they said. And that was the end of it.
Ambassador Meza-Cuadra made it to the airport in time. But after Nairobi, questions would be asked about whether a treaty on plastic pollution could really be concluded by the end of 2024, as foreseen in the negotiation mandate. By undermining Meza-Cuadra’s zero draft, the oil and plastics producing countries deprived the negotiation committee of a key opportunity to find the solutions needed to solve the plastics crisis.
As negotiators convene for the fourth round of negotiations in Ottawa, from 23 to 29 April 2024, it is not impossible to bring the process back on track. But moulding an effective treaty out of the perplexing, revised draft text will require extraordinary leadership, strategic clarity and — perhaps most importantly — a willingness of would-be ambitious countries to move ahead, even if the least interested states choose to stay behind.
