It’s been two months since the United Nations Environment Program published the "zero draft”" of the international legally binding instrument on plastic pollution, referred to henceforth as simply "the treaty." The 31-page document is full of options, either/or situations and yet-to-be-written annexes, but it starts to give a sense of what the treaty will eventually contain. My colleague Heather Clancy recently dug into the draft and the Surfrider Foundation provided useful bullet points on what’s in and out.
This process, leading to a 2024 deadline to agree on a treaty, started when 175 nation states came together in March 2022 at a U.N. Environment Assembly in Nairobi. The zero draft, our first glimpse of what will eventually become a legally binding treaty, will guide future negotiations.
As the dust settles on the zero draft and we look forward to the third of five U.N. Intergovernmental Negotiating Committee talks (INC-3) in Nairobi later this month, I checked in with Erin Simon, vice president for plastic waste and business at World Wildlife Fund (WWF). The organization has been a stakeholder in the treaty process since the beginning and recently published a helpful brief that outlines the draft’s key points and calls on member states to take specific actions.
What the 'options' in the zero draft mean
As with any binding agreement, words really matter in this treaty. The zero draft lays out more than one option for treaty language in nearly every section. The choice to pick from one option or to find some middle ground will be up for debate by nation states.
One spot in the zero draft where the wording leaves a wide lane for negotiation is the "Extended producer responsibility" section. Option 1 states, "Each Party shall establish and operate Extended Producer Responsibility systems." Option 2 says, "Each Party is encouraged to establish and operate Extended Producer Responsibility systems." This difference is akin to a parent saying "You have to eat your vegetables" versus "You know what, eating your vegetables seems like a good idea, but you do you."
We have to talk about annexes
The opacity of regulatory text can often be frustrating, but it often lifts when you read the annexes, extensions of the original text that will appear in the final treaty. The compulsion to put such important, non-extraneous information in annexes is perplexing. My hunch is that it makes it easier to modify annexes than to modify the main text of the treaty if new science and technologies emerge.
The annexes could be a crucial hingepoint as to whether the treaty bares teeth or simply falls flat. One annex in particular I’m excited to see is the yet to be written "Part II of annex A." A footnote in the zero draft says: "Could contain: (i) criteria to determine chemicals, groups of chemicals and polymers of concern; (ii) specific chemicals, groups of chemicals and polymers of concern; and (iii) associated control measures and potential exclusions, including phase-out periods as relevant."
This treaty must protect the rights of Indigenous Peoples throughout the entire death cycle of plastics.
During INC-3, the member states will first have to align on the need for the annexes. If annexes are needed, the discussion about the language within will likely be hotly debated. Corporations and lobbying may play an outsized role because the difference between a chemicals-of-concern annex that focuses on final products, for example, versus one that focuses on upstream chemicals and materials, will have huge implications for industry.
What makes a just transition?
As we know all too well, environmental justice often lands somewhere between completely ignored or considered initially yet forgotten soon thereafter. Marginalized communities, whether defined by race, religion, immigration status, class or any other number of factors, experience an outsized impact related to plastic production, mismanagement at end of use, landfilling and incineration. The Treaty on Plastic Pollution has a real chance to improve outcomes for these communities at a global scale.
From the outside looking into this process, however, I’m not optimistic. The "Just transition" section in the zero draft of the treaty leaves much to be desired. It states, "Each Party shall promote and facilitate a fair, equitable and inclusive transition for affected populations." It presents what can only be interpreted as optional measures because they start with, "This may include." Its seven methods to ensure a just transition, while well intentioned, are not specific enough to make change and leave everything to each country’s national plan.
Affected communities want a discussion upstream to cap the production of the chemicals harming them. Frankie Orona, executive director of the Society of Native Nations, said in June: "This treaty must protect the rights of Indigenous Peoples throughout the entire death cycle of plastics. It must eliminate toxic chemicals while reducing the supply and demand for plastics in order to protect our water, soil and air for future generations."
Simon noted that language within the zero draft approaches a more equitable future and reduces the impacts on the communities most affected by plastic pollution. "If globally binding rules on bans and phaseouts, along with requirements around product design make it into the final treaty draft, then it will get us to an overall plastic reduction,” she said. "There will still be more work to do, but some of that work will fall outside the scope of the treaty."