The deceptive sound of satisfaction
The zero draft of the new plastic pollution treaty, released this week, is a solid nudge in the direction of a treaty with specific global rules. Expect a coordinated procedural kick-back.
An advanced version of the much anticipated zero draft of the new treaty on plastic pollution was released on Monday (4 Sep 2023), triggering an initial wave of excitement in the Twittersphere. When the dust settled, however, things turned quiet. This is perhaps not surprising. After all, it does take a bit of time to review and analyse all the intricacies and implications of a new treaty text — not least when it contains various options, explanatory notes, and cross-references. But is that the only reason? Or is it possible that the lack of noise to some extent could be attributed to the fact that the loudest voices out there (typically civil society organizations) seem to be quite content with what Ambassador Gustavo Meza-Cuadra, the chair of the Intergovernmental Negotiation Committee (INC) has been able to piece together. Is this the muted sound of satisfaction?
To some extent, it might also be the sound of relief—of states and stakeholders pausing a bit to ponder the significance of this moment. The release of the zero draft is a huge milestone in the international community’s quest for an effective response to the plastic pollution crisis, possibly only matched by the UN Environment Assembly’s (UNEA) decision last year to start the negotiations. For those who have followed the process since its inception, that probably merits a little pinch. Is this really happening? Nearly a decade after the adoption of the first resolution on marine plastic debris and microplastics, the early whispers of the need for a new treaty to tackle the galloping environmental challenge posed by marine plastic pollution are turning into reality. There is an actual treaty text on the table.
Relieved, content, or otherwise; most observers will likely agree that the zero draft is an impressive piece of work. Somehow Meza-Cuadra and his team have managed to navigate through the cacophony of voices, opinions and proposals that have poured out over the past year, and distil this substantive smorgasbord into a relatively coherent, concise, and well-structured legislative document. The draft contains specific text proposals, combined with options, underpinned by explanatory notes. Granted, many of the sections remain empty placeholders. But still. This zero draft is a lot less messy than many had feared.
The draft is also quite balanced, containing options along the way that even the most sceptical governments would be able to bring back to capital for ratification. And the same states may find comfort in the fact that many of the proposed measures could easily disappear entirely in the course of the negotiations . But is it enough? Does it provide sufficient room for manoeuvre for those that prefer a pure bottom-up, Paris-style agreement (or no agreement at all)? Or will these states feel that they are being pushed into a corner? The answer to that will likely determine what happens next.
At the INC-2 in Paris, the first half of the session was spent quarrelling over bureau composition and rules of procedure. While some sort of she-said-this-he-said-that compromise was reached (in the form of an ‘interpretive statement’ carved out late at night in Paris), the fire is still burning. Several states made this clear even before the curtains closed in Paris. When the Indian representative, Naresh Pal Gangwar, took the floor on 2 June, for instance, he left little room for doubt about where his country stands, repeating — in what appeared to be an interpretation of the interpretive statement — that “all substantive matters must be agreed by consensus.” He went on to stress that “it is for the benefit of parties that the rules of procedure are adopted at INC-3”. India did not want to be pushed into a corner. And the battle was not really lost, nor was it really won, by either side. With a cocktail of ambiguity, the can was simply kicked down the road.
For states dissatisfied with the zero draft, the upcoming discussions on the rules of procedure (which remain on the INCs agenda, as they will continue to be until they are formally adopted) provide an opportunity to hit back. They could do this in at least two different ways. One tactic they could employ is to revive the discussions on Rule 38(1) and continue to push for the removal of the voting option. Should they succeed, that would make consensus a formal requirement on substantive issues and give the sceptics all the power and confidence they need. For those who favour a continuation of the status quo, there is nothing more convenient than a formal consensus rule. Whether this is a realistic prospect is another matter. That battle does seem lost. When rule 38(1) was discussed at INC-2, a long list of members made it very clear that a single state could not be allowed to block all progress.
What the consensus-minded INC members might be able to achieve, however, is a revision of the qualified majority threshold, which could be bumped up to a 75% or 80% majority (provided that at least two-thirds of the members agree). Would that make a difference? Possibly. Would it deviate from established practice? Clearly. Would it make the quest for an ambitious and effective treaty even more difficult? Most likely. Would India and other members insisting on a formal consensus requirement accept such a solution? Probably not.
Another tactic states concerned about the direction of travel could pull out of the toolbox is plain old stalling manoeuvres, preferably under the agenda item on rules of procedure (as that carries minimal risk of any sudden substantive progress). And there is ample room for doing so. The draft rules of procedure are basically an amended version of the rules of procedure used for the negotiation of the Minamata Convention, which in turn was inspired by those used for the Stockholm Convention, and so on. But this game of Chinese whispers, where each set of rules are half-heartedly adapted to a new issue, has led to a gradual erosion of the accuracy and robustness of the rules. They are clearly ripe for a thorough revision and review. But that task was brushed aside in the beginning of the process. First by the UNEP secretariat (who could have done that job before submitting a proposal to the OEWG), and then by the chair and the INC members (who agreed to apply the rules provisionally despite the fact that the draft contained both brackets and alternative paragraphs). That could very soon come back to bite them.
How would this stalling tactic play out? For one, questions could be raised about credentials, which are not mentioned in the draft rules of procedure (unusual for treaty negotiations). According to the INC secretariat, this is because the INC is a subsidiary body of UNEA. But that interpretation is highly questionable, and many delegations are likely to disagree with it. One clear indication that the INC is not a subsidiary body of UNEA is that the rules of procedure for UNEA specify, in rule 63(3), that subsidiary organs are to apply the UNEA rules of procedure, as appropriate:
3. The rules of procedure of subsidiary organs shall be those of the United Nations Environment Assembly, as appropriate, subject to such modifications as the United Nations Environment Assembly may decide upon in the light of proposals by the subsidiary organs concerned. Each subsidiary organ shall elect its own officers.
This means that if the INC were a subsidiary body of UNEA, the rules of procedure under consideration would have to be sent back to UNEA for approval. This is clearly not the case. Even so, the secretariat’s conclusion with regards to credentials is arguably not wrong. Full powers will be needed for adopting and signing the text (which is also why a separate diplomatic conference will be convened for the purpose of adopting the treaty) but they are not strictly necessary for the development of the treaty. And there is precedent for not using credentials in the negotiation process of environmental treaties. But the operative word here is ‘arguably’. There is plenty of scope for disagreement on this, and hence an appealing potential for yet more procedural stalling.
Secondly, INC members eager to stall any progress could raise questions about the validity of rule 38(3), which concerns the question of whether an issue is substantive or procedural. This may seem like a long shot, but the issue was already brought up in Paris. Is the adoption of the rules of procedure a procedural issue or a substantive issue? If it is procedural, the committee would not even have to attempt to achieve consensus. It could basically decide by a simple majority. For many delegations, this would likely come across as nonsensical. Why would you adopt a decision like that by simple majority, when the issue under consideration is whether substantive matters could be decided by a two-thirds majority or by consensus? The problem, and this could be a golden egg for any prospective staller, is that the current formulation in rule 38(3) creates a recipe for stalemate. The draft rule reads as follows:
3. Where there is disagreement as to whether a matter to be voted on is a substantive or procedural matter, that issue shall be decided by a two-thirds majority of the representatives of Members who are present and voting.
The thing about this paragraph is that it does not specify a clear starting point for the decision. That is to say, it is not evident from this rule if two-thirds majority is needed to conclude that the matter is substantive, or whether the same majority is needed to decide that the matter is procedural. The result is that, in the event that there is less than two-thirds majority either way, the committee will be unable to take a decision on it. This, importantly, deviates from established practice in other UN bodies and negotiating conferences. Usually, the rules would specify that the chair (or equivalent) decides on the matter, and that a majority could overturn that decision. Rule 39(4) in the rules of procedure of Third UN Conference on the Law of the Sea is but one example of this:
4. If the question arises whether a matter is one of procedure or of substance, the President shall rule on the question. An appeal against this ruling shall immediately be put to the vote and the President’s ruling shall stand unless the appeal is approved by a majority of the representatives present and voting.
Closing the loophole in rule 38(3) would not have been particularly difficult, if it had been done before the rules were presented for consideration at the OEWG, or even at INC-1. Now, however, as the rules of procedure are already provisionally applied, INC members are stuck in a catch-22.
For the aspiring time-thieves, this is excellent news. And there is more where that came from. If need be, the quarrelling over the precision of the rules of procedure could be extended further by raising questions about the process for determining whether all efforts to achieve consensus have been exhausted (as was also done in Paris). As it stands, there is no clarity on this in Rule 38(1). And that is another potent quagmire that a filibuster-bent government could be tempted to exploit.
Can all this be avoided? For most INC members, the prospects of spending yet another INC session engulfed in procedural bickering is, one would expect, not particularly appealing. But if this is to be prevented, the progressive states may have to do some homework. First of all, they have to come to terms with the fact that the battle over the rules of procedure has to be fought. It will not simply go away. And it shouldn’t. Applying draft rules of procedure provisionally throughout an entire negotiation process carries inherent risks, and with every new session, the stakes will increase. As such, Naresh Pal Gangwar is making a very reasonable argument when he points to the benefits of adopting the rules of procedure at INC3, and he has a truckload of precedent and established practice backing him. In fact, it is hard to find any example of any treaty having been negotiated without formally adopted rules of procedure — let alone rules of procedure that contain both brackets and alternative paragraphs.
Secondly, the states wishing to retain the option of voting on substantive matters would benefit greatly from having a clean text on the table. Ideally, that clean text would be based on consultations with INC members and presented by the chair, with the backing of the bureau. So far, however, the chair’s consultations on rule 37 have proven futile. The EU and USA are both refusing to budge. Which means that other countries or regions may have to step up. If a group of states, backed by a majority of the INC membership, were to table a clean version of the draft rules, with a workable compromise solution to rule 37, that could, with a bit of luck, set the committee up for a quick and efficient decision on the first day of INC3. If so, it would pave the way for a substance-focused round of negotiations, on the basis of a solid zero draft, and with the prospects of ending up with a robust and ambitious treaty text by the end of 2024 considerably improved.
By Torbjørn Graff Hugo and Magnus Løvold, Norwegian Academy of International Law (NAIL). Follow our reporting from the Plastics Treaty negotiations on Points of Order.
The process towards a plastics treaty
Following the adoption, on 2 March 2022, of the resolution “End plastic pollution: Towards an international legally binding instrument” in the UN Environment Assembly, UN Member States are negotiating an international legally binding instrument on plastic pollution, including in the marine environment. The negotiations will take place in five sessions and are expected to conclude with the adoption of a new treaty in late 2024. The first negotiation session took place in Punta del Este, Uruguay, on 28 November-2 December 2022, and the second session took place in Paris, France, on 29 May-2 June 2023. States and stakeholders are currently preparing for the third negotiation session, which will take place in Nairobi, Kenya, on 13-19 November 2023.
