One does not simply walk into Paris
PUNTA DEL ESTE, 3 DECEMBER 2022: “We will see you in Paris”. Ambassador Gustavo Meza-Cuadra could not hide a smile as he declared “the first session of the Intergovernmental Negotiation Committee to develop an international legally binding instrument on plastic pollution” closed, eight minutes to eight in the evening, local time, Uruguay.
“The meeting is adjourned”, the Peruvian conference chair added hastily — a little annoyed, perhaps, at the gratuitous reminder by legal adviser Stadler Trengove to end the meeting in line with formal procedure.
As he hit his gavel against the sound block, the room broke into restrained applause. Tired after five long days of negotiation in the lifeless convention center in Punta del Este, many of the delegates were looking forward to dinner and a drink or two at Moby Dick Pub & Grill, the scene of the informal conference afterparty, before their journey home.
The negotiators had done what they had come to do: The session had opened. Statements had been drafted, adjusted, delivered. The session had closed.
But what, exactly, had been achieved?
At first glance, not that much. The week had seen discussions on the scope, objectives, structure and the “potential elements” of the new treaty, the Committee’s rules of procedure, the date and venue of next negotiation sessions, and the composition its “bureau” — a group of representatives elected to coordinate the Committee’s work.
Yet, as the first session drew to a close on Friday evening, the 158 countries that participated in the negotiations had only made three modest decisions: First, Ambassador Gustavo Meza-Cuadra of Peru had been elected, by acclamation, to chair the Committee. Second, the Committee’s secretariat had been tasked with preparing a document with “potential options for elements” of the new treaty. And third, the Committee would meet again in Paris, sometime in May 2023.
Everything else, it seemed, had been left hanging in the balance. While a large number of countries had expressed preference for an ambitious treaty with specific and binding core provisions — and although an encouragingly high number of countries outlined, in their statements, the types of control measures the new treaty could contain — the session saw no decision on “matters of substance”. Indeed, a few vocal countries, seemingly impervious to the way the wind had been blowing throughout the week, had continued until the end to insist that the new treaty should be designed as a loose bottom-up framework for the coordination of national policy efforts. A treaty, in other words, in nothing but name.
The lack of clarity on the treaty’s substance would have been less of a problem had the Committee been able to agree on how to organize its work. But as the sun dipped into the River Plate on Friday evening, many key organizational issues were left unresolved: The Committee had no agreement on the composition of its bureau — due, not surprisingly, to disagreements within the Eastern European Group, which includes Ukraine, Russia, and several European NATO members. The venues of the Committee’s future sessions beyond Paris — notably the proposed fourth session in Canada — had been contested by Russia.
Moreover, while Ambassador Meza-Cuadra had been elected to chair the Committee, the delicate matter of who would preside over the Committee’s work beyond its third session had only been partially resolved. Peru and Ecuador — both of which had, in the lead-up to the conference, been vying for the chairmanship — had agreed, in a last-minute compromise deal, to split the task between them. While the Latin American and Caribbean group formally endorsed this seemingly Solomonic solution, the Committee made no formal decision on the matter, and it may be challenged at future sessions.
More seriously still, disagreements over the Committee’s decision-making rules — as outlined in the draft rules of procedures agreed at the preparatory meeting in Dakar six months earlier — had intensified throughout the week.
Late in the afternoon on Friday, a rare statement by the delegation of India, delivered remotely from New Delhi, made clear what Saudi Arabia and others had thus far only insinuated. Arguing that there is a “link” between rule 37 on voting rights — which had been left in unresolved in brackets in Dakar — and rule 38 on decision-making, India 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.
While several delegations objected to this proposal — with Senegal, in a forceful intervention, declaring that they would “not participate in any discussion on agreed text” from Dakar — it was clear that the Committee’s decision-making rule was becoming a source of political contention. When Ambassador Meza-Cuadra closed the meeting on Friday evening, the Committee was no closer to adopting its rules of procedure at the end than it had been at the beginning of its session. In fact, the opposite appeared to be the case.
Few of these organizational hurdles come as a surprise. Against the backdrop of Russia’s war in Ukraine, no one had expected the Eastern European Group to be able to amicably agree on two candidates to the bureau. It is difficult to see how consensus can be achieved on this matter before the Committee wraps up its work in 2024. This begs the question: Can the Committee conclude its work without a formally established bureau? If the answer is no, will the Chair have the audacity to put the matter to a vote, by secret ballot, in Paris?
While questions about venues and chairs of the Committee’s future sessions may continue to cause negotiators headache, the brackets in rule 37 will likely be the biggest spanner in the Committee’s works. Leaving this issue unresolved until 2024, when the Committee is expected to forward the new treaty to a Diplomatic Conference for adoption, would be a major mistake. The longer the Committee defers adoption and instead continue to “provisionally apply” its rules of procedure, the higher the risk that substantive disagreements, which are likely to sharpen throughout the negotiations, will become procedurally impossible to solve.
“There is, brothers, so much to do, and boy, how little we have done, how much remains to be done”, Ambassador Gustavo Meza-Cuadra said as he closed the Committee’s first session on Friday evening, citing the Peruvian poet César Vallejo. Indeed, anyone hoping for a rapid solution to the problem of plastic pollution likely found the outcomes of the Committee’s first session wanting.
“To do something” in multilateral negotiations means adopting decisions. As countries prepare for the Committee’s next session in Paris, they will not only have to figure out which rules and regulations that would most effectively end plastic pollution. More urgently, countries will have to find a procedural path for how these rules and regulations, once identified, may be adopted by the Committee.
This will be no walk in the park. What is clear, however, is that the adoption of an ambitious treaty on plastic pollution requires clarity on how the treaty may be adopted in the first place. Procedural ambiguity will likely only benefit those states and stakeholders that are seeking to weaken the text of the instrument.
By Magnus Løvold and Torbjørn Graff Hugo, Norwegian Academy of International Law
For more on the plastic pollution treaty negotiations, see Earth Negotiation Bulletin’s reporting from the meeting.
