The resumed session of the fifth UN Environment Assembly (UNEA) is right around the corner, and everything is lined up for a decision to start negotiations on a new treaty on marine plastic pollution. The support is overwhelming. More than 180 UN Member States have publicly announced their support for a treaty-based solution to the problem. Governments are cheered on by some of the world’s largest consumer goods companies, hundreds of civil society organizations, a spectrum of scientists and academics, and millions of concerned citizens. The backing is so strong that if the States for some reason fail to adopt a negotiation mandate, it would be a serious blow to the relevance of UNEA – the worlds self-proclaimed “highest decision-making body for the environment”.
But even if the road is open, it is littered with stumbling blocks. The new treaty’s scope, objective, framing and priorities remain curiously vague. Nearly eight years after the first resolution on ‘marine plastic debris and microplastics’ was adopted, governments continue to tip-toe around the issue by bouncing around cozy terms like ‘whole-of-society’, ‘life-cycle approach’, ‘sustainable consumption and production’, ‘upstream measures’, and, more recently, ‘circular economy’. It sounds nice, but what it really means, and how it would be translated into concrete obligations, remains anyone’s guess.
To some extent the current lack of detail makes sense. Spelling out specifics is what the treaty negotiation process is for, and that hasn’t started yet. A mandate is just a mandate—a decision to grant someone the authority to do something. But as things stand, there is a real risk that UNEA will fail to provide a clear sense of direction for the negotiations. And that is likely to come back and haunt governments when the treaty negotiations get going.. With the final round of negotiations on the mandate resolution about to begin, there seems to be too little clarity on key elements.
- First, and, most fundamentally, what kind of problem will the new treaty solve? Is it an ocean problem, a waste problem or a plastic problem, or all of the above?;
- Second, how wide-ranging is the treaty’s scope? Will it address marine plastic pollution, all plastic pollution, or all marine litter?
- Third, what exactly will the parties to the treaty aim to achieve? Will they seek to stop leakage, reduce the amount of plastic in the ocean, or achieve a circular economy for plastics?
- And finally, what kind of obligations will the treaty contain? Will it establish a set of global standards and rules, a weaker commitment to submit voluntary national contributions, or a combination?
To a certain extent, the divergence of views regarding the purpose and shape of the new treaty reflects genuine differences in national priorities. While some States would prefer to use the new treaty as a vehicle to promote a more circular global economy for plastics, others see it as a tool for tackling the transboundary aspects of the problem—most notably plastic in the ocean. Another prominent fault line runs between those States that prefer a treaty that will not bind them to a specific set of actions, and those that believe the new treaty must set a common standard for all.
But there may be something else at play as well. Could it be that the disagreements over framing, scope, principles, and approaches are a symptom of something else, namely a profound uncertainty about how to best tackle the issue? Most governments struggle even to describe the precise nature of the problem they are hoping to solve. They appear equally confused when it comes to the question of how tackle it. This uncertainty is exacerbated by a lack of reliable data. Nobody really knows how much plastic enters the marine environment each year, or how it gets there. All we have are estimates, extrapolations and a set of assumptions.
Whether we like it or not, plastic pollution is a complex issue. Sea-based sources and land-based sources, macroplastics (litter) and microplastics, leakage from littering, accidental discharge, leakage by fragmentation, improper disposal (open landfills), abrasion and wear-and-tear, and deliberate dumping of garbage. Single-use plastics, lost fishing gear, agricultural use, textiles, transportation, construction, cellphones. Plastic is everywhere. So where to start?
Some have concluded that ‘systemic change’ is the answer. Across the board, a plastic revolution. But such an approach is a recipe for failure. When everything is important, as the saying goes, nothing is important.
So what to do? The first step in getting this right is to acknowledge the complexity: plastic pollution is scientifically complex, technically complex, politically complex, and administratively complex. The second step is to come to terms with the fact we cannot do everything at once, and, consequently, that certain things must be prioritized. This means that some basic questions must be asked: What, if we have to choose, is the most pressing part of the problem? Which categories of plastic pollution poses the greatest risk to nature and people? Which regulatory interventions would reap the quickest and most cost-efficient rewards? In other words: what should be done first?
Let’s start with what we know. Single-use plastics constitute the main category of items found on beaches. It is also a clear threat to marine wildlife. Of the top-ten items found on beaches around the world, all are single-use plastic products. And the story is not very different if you move away from the shoreline and look at terrestrial plastic pollution. It is no surprise, therefore, that single-use plastic has been singled out as the main culprit by governments. Measures are being put in place all around the world in an effort to curb this specific part of the plastic pollution problem. The small pacific island state of Vanuatu has even banned single-use diapers! The problem at hand is that these efforts are not coordinated, the rules are not harmonized, and definitions are not compatible. This, in turn, creates a chaotic regulatory landscape, which becomes difficult to navigate, not least for private companies. The result is a lost opportunity.
From a legal point of view, the most sensible response to this situation is to do two things: First, set up the institutional structures and general framework needed to gather policy-relevant evidence in order to facilitate the introduction of more specific common rules. Secondly, negotiate issue-specific legal instruments on the most pressing categories of the problem. In other words, start by setting up a convention secretariat, a scientific body, monitoring, reporting and finance mechanisms and an implementation review structure under a framework convention. When that is done, or even while that is being done, initiate negotiations on a more detailed supplementary instrument – a protocol – on single-use plastics. With a more narrowly defined scope, a clearly delineated sub-category of the larger problem, and a long list of existing national legislation to draw on, the SUP-protocol would serve as the tool that translates the lofty ambitions of the framework convention into specific obligations, harmonized rules, and clear standards. When that is done, move on to the next issue. Fishing-related items (ghost gear) could be next in line. A third protocol could be set up to deal with microplastics.
“It is better to solve one problem five different ways, than to solve five problems one way”, the Hungarian mathematician George Pólya once said. Instead of seeking an all-encompassing solution to the problem of plastic pollution at once, States looking to negotiate a new treaty on marine plastic pollution should focus their efforts on the most pressing part of the problem first. Systemic change towards a circular plastics economy is unlikely to come about as a result of a sudden revolution. It can be done, but only if States and those in a position to influence them put one foot in front of another.
A journey of a thousand miles start beneath one’s feet, as the Chinese proverb goes. A first protocol on single-use plastics under a framework convention on marine plastic pollution will provide the direction and momentum needed to get the plastics revolution under way.
By Torbjørn Graff Hugo and Magnus Løvold