Global Plastic Pollution and its Regulation: History, Trends, Perspectives 1800373546, 9781800373549

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Global Plastic Pollution and its Regulation

Global Plastic Pollution and its Regulation History, Trends, Perspectives

Gerry Nagtzaam Associate Professor, Faculty of Law, Monash University, Australia

Geert Van Calster Full Professor, Faculty of Law, KU Leuven, Belgium, Visiting Professor, King’s College London, UK and Monash University, Australia

Steve Kourabas Senior Lecturer, Faculty of Law, Monash University, Australia

Elena Karataeva Faculty of Law, Monash University, Australia

Cheltenham, UK • Northampton, MA, USA

© Gerry Nagtzaam, Geert van Calster, Steve Kourabas and Elena Karataeva 2023 Front cover format designed by Kim Lye Tan. Cover images (clockwise from top left): Giant Fish made out of plastic by Laxminarayan Proddutoor, CC BY-SA 4.0, via Wikimedia Commons, https://commons.wikimedia.org/wiki/File:ART_IN_THE_ URBAN_SPACE.jpg (background sky and sea behind fish edited); Bottles on beach, by altitudevisual on Adobe Stock; Mute Swan by Thue, public domain, via Wikimedia Commons, https://commons.wikimedia.org/wiki/File:Pollution_swan.jpg; Himalayas littered with plastic by Sylwia Bartyzelon Unsplash. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system or transmitted in any form or by any means, electronic, mechanical or photocopying, recording, or otherwise without the prior permission of the publisher. Published by Edward Elgar Publishing Limited The Lypiatts 15 Lansdown Road Cheltenham Glos GL50 2JA UK Edward Elgar Publishing, Inc. William Pratt House 9 Dewey Court Northampton Massachusetts 01060 USA A catalogue record for this book is available from the British Library Library of Congress Control Number: 2023939688 This book is available electronically in the Law subject collection http://dx.doi.org/10.4337/9781800373556

ISBN 978 1 80037 354 9 (cased) ISBN 978 1 80037 355 6 (eBook)

EEP BoX

Contents List of abbreviationsvi Acknowledgementsxi Introduction: global plastic and its regulationxii PART I 1

THE PLASTIC POLLUTION PROBLEM, DEFINITIONS, SCOPE AND ALTERNATIVES

The plastic pollution problem, definitions, scope and alternatives

PART II

2

NATIONAL AND REGIONAL REGULATORY APPROACHES TO PLASTIC

2

Plastic regulation in the United States of America

35

3

Plastic regulation in the People’s Republic of China

79

4

Plastic regulation in Australia

111

5

Plastic regulation in the European Union

144

PART III GLOBAL CONTEXT OF PLASTIC USAGE AND POLLUTION 6

Current international law and plastic

177

7

Crafting a global plastics treaty

224

8

Drafting/developing the components of an effective global plastics treaty

268

Conclusion: the current international response to the regulation of plastic313 Index337

v

Abbreviations ACC ACF ACT AHOEG AOSIS APCO ARL BDM BFPP CDS CEFC CFC CIEL CITES COP COW CRLTAP CSD CDS CJEU CSIRO EC ECHA ECSC EEA

American Chemical Council Australian Conservation Foundation Australian Capital Territory Ad-Hoc Open-Ended Expert Group on Marine Litter and Microplastics Alliance of Small Island States Australian Packaging Covenant Australasian Recycling Label Biodegradable Mulch Break Free from Plastic Pollution Container Deposit Scheme Clean Energy Finance Corporation Chlorofluorocarbon Centre for International Environmental Law Convention in International Trade on Endangered Species Conference of the Parties Committee of the Whole Convention on Long-range Transboundary Air Pollution Commission on Sustainable Development Container Deposit Scheme Court of Justice of the European Union Commonwealth Scientific and Industrial Research Organisation European Community European Chemicals Agency European Coal and Steel Treaty European Environment Agency vi

Abbreviations

EEC EFTA EIA EIB ENGO EPA EPRS ETS EU EUFJE FoE G7 G20 GEF GHG GNC GPA GPML ICARM ICCA ICM IGR IMF INC INDC IPCC IPEN IPPC IO IRC ISRI IUCN

European Economic Community European Free Trade Association Environmental Investigation Agency European Investment Bank Environmental Nongovernmental Organization Environmental Protection Agency Extended Producer Responsibility Schemes Emissions Trading Scheme European Union EU Forum of Judges for the Environment Friends of the Earth Group of Seven Group of Twenty Global Environmental Facility Greenhouse Gas Global Network of the Committed Global Program of Action Global Partnership on Marine Litter Integrated Coastal and River Basin Management International Council of Chemical Associations Integrated Coastal Management Intergovernmental Review International Monetary Fund Intergovernmental Negotiating Committee Intended Nationally Determined Contributions Intergovernmental Panel on Climate Change International Pollutants Elimination Network Integrated Pollution Prevention and Control International Organization Internal Revenue Code Institute of Scrap Recycling Industries International Union for the Conservation of Nature (World Conservation Union)

vii

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KABCNT LBI LDC LNG MARPOL MPP MEA MFW MLF MOC MOEP MOP MOHURD MSW Mt NbS NDRC NIMBY NGO NOAA NPP NSP OECD OECPR OEWG OGF PAE PAH PBR PDA PET PIC

Global plastic pollution and its regulation

Keep Australia Beautiful Council NT Legally Binding Instrument Lesser Developed Country Liquid Natural Gas Marine Pollution Convention Marine Plastic Pollution Multilateral Environmental Agreement Microbead-Free Waters Multilateral Fund Ministry of Commerce Ministry of Environmental Protection Meeting of Parties Ministry of Housing and Urban–Rural Development Municipal Solid Waste Million metric Tonnes Nature-based Solutions National Development and Reform Commission Not in My Backyard Non-Governmental Organization National Oceanic and Atmospheric Administration National Plastics Plan National Swords Policy Organisation of Economic Co-operation and Development Open-ended Committee of Permanent Representatives Open-ended Working Group Operation Green Fence Phthalate Esters Polycyclic Aromatic Hydrocarbons Plastic Bag Reduction Act Paris Decision and Agreement Polyethylene tetraphthalate Plastics Identification Code

Abbreviations

PIC PL PLA PM POP POPRC PPL PRS PRO PVC PWG REDUCE REACH RIF RWR SAPEA SDG SOS 2.0 SP SUP SW SWDA TEU TFEU TNC UK UN UNCCC UNCLOS UNCLOS III UNCTAD

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Prior Informed Consent Polystyrene Polylactic Acid Particulate Matter Persistent Organic Pollutant Persistent Organic Pollutants Review Committee Polypropylene Producer Responsibility Schemes Producer Responsibility Organisation Polyvinyl chloride Permanent Working Group Rewarding Efforts to Decrease Unrecycled Contaminants in Ecosystems Registration, Evaluation, Authorisation, and Restriction of Chemicals Recycling Investment Fund Recycling and Waste Reduction Science Advice for Policy by European Academies Sustainable Development Goal Save Our Seas 2.0 Supplementary Protocol Single Use Plastic Solid Waste Solid Waste Disposal Act Treaty on European Union Treaty on the Functioning of the European Union Transnational Corporation United Kingdom United Nations United Nations Convention on Climate Change United Nations Convention on the Law of the Sea Third United Nations Convention on the Law of the Sea United Nations Conference on Trade and Development

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UNDP UNEA UNEP UNESCO UNFCCC U.S. VOC WG WHO WMO WTO WWF

United Nations Development Programme United Nations Environmental Assembly United Nations Environmental Programme United Nations Educational, Scientific and Cultural Organisation United Nations Framework Convention on Climate Change United States of America Volatile Organic Compound Working Group World Health Organization World Meteorological Organization World Trade Organization World Wildlife Fund

Acknowledgements Gerry Nagtzaam and Steve Kourabas, ‘Failing the Future: The Complex Road to Effective Plastic Regulation in the U.S.’ (2023) 13(2) Arizona Journal of Environmental Law & Policy 224–260. Steve Kourabas and Gerry Nagtzaam, ‘Australia’s Regulatory Approach to Plastic Pollution: Letting a Thousand (Plastic) Flowers Bloom?’, Australia Environmental Planning and Law Journal (June 2023). Gerry Nagtzaam and Elena Karataeva, ‘Seeking to be “Like Water”: Plastic Regulation in the People’s Republic of China’ (2023) 63 Natural Resources Journal 283. Gerry Nagtzaam, ‘A Fraying Patchwork Quilt: International Law and Plastic Pollution’, Villanova Environmental Law Review (July 2023).

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Introduction: global plastic and its regulation When Mr McGuire gave his advice to a young, ambitious Benjamin Braddock looking for a career that, “I just want to say one word to you, are you listening: plastics … There is a great future in Plastics” in Mike Nichols’ The Graduate, the terrible environmental impact of the bright future imagined for the plastic industry was unknown. Researchers estimate, globally, industries have produced 8.3 billion metric tonnes of plastic since the advent of the material.1 The growth of cheap single-use plastic can be considered a byproduct of cheap fossil fuels that creates vast quantities of virgin (new) plastic.2 Further, there are more kinds of plastic than ever before and it is currently much less expensive to make plastic out of oil than recycled plastic waste.3 In a post-WWII world mass production of plastic (both durable and disposable) steadily increased to meet the ever-growing consumption needs of a burgeoning global populace.4 Currently, the plastics industry achieves annual revenues of US$750 billion, it is growing in size and power; production and consumption of plastics is growing with it.5 Between 1950 and 2015, a total of 6.3 billion tonnes of primary and secondary (recycled) plastic waste was produced around the world. Of that, 9% was recycled, and 12% incinerated,

1 Roland Geyer, Jenna R Jambeck and Kara Lavender Law, ‘Production, Use, and Fate of All Plastics Ever Made’ (2017) 3(7) Science Advances 1–6, 1; DOI: . 2 Anatasia M Telesetsky, ‘Beyond Existing Legislated Efforts to Control Single-Use Plastics: A Proposal for Ending Fossil-Fuel Subsidies and Standarsizing Single-Use Plastic Packaging’ (2021) 57(1) California Western Law Review 68 . 3 Laura Sullivan, ‘How Big Oil Misled the Public into Believing Plastic Would be Recycled’ NPR (11 September 2020) . 4 Richard C Thompson et al, ‘Our Plastic Age’ (2009) 364 Philosophical Transactions of Royal Society B 1974, 1974 (Thompson et al ‘Our Plastic Age’). 5 Nils Simon and Lili Fuhr, Stopping Global Plastic Pollution: The Case for an International Convention, Publication Series Ecology, vol 43 (Heinrich-Böll-Stiftung, 2017), 9.

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with the remaining 79% either being stored in landfills or having been released into the natural environment.6 Our current understanding of plastic production and its concomitant pollution problem and especially of its consequences and impacts on the environment and human health is still limited. Nevertheless, there are many warning signs that these impacts and consequences are significant.7 Further, it is clear that major producers of the plastics (Dow, Dupont, Mobil, American Oil Company, Procter & Gamble, and others) were aware of waste issues resulting from plastic pollution as early as 1969 but have chosen in most cases not to act.8 Problematically, the legal and regulatory responses to the issue globally are still in their infancy. Policy regulation on sustainable plastic management “lagged” the creation of plastic for several decades, with the first national regulatory approach implemented in Denmark during the 1990s via a plastic bag levy.9 The first plastic product bans were implemented beginning from the early 2000s.10 The state of knowledge on the effectiveness of the policy and legislative tools to reduce and eliminate plastic pollution is still rudimentary as the regulatory response, especially on the global level, has been slow. Only several isolated studies have been done to date on the regulation and governance of some types of plastic pollution, such as bags and microbeads.11 In this book, we outline the extent of the plastic pollution problem and the current approach to regulation in a number of key jurisdictions. The book critically analyses the deficiencies in these regulatory efforts and highlights a number of proposals for reform. A particular challenge faced across jurisdictions is the fragmented approach to regulation, often resulting from industry efforts to resist comprehensive public oversight. The regulation of plastics,

6 Christopher J Rhodes ‘Plastic Pollution and Potential Solutions’ (2018) 101(3) Science Progress 207. 7 Ian Johnston, ‘How plastic is damaging planet Earth’, The Independent (28 September 2017). 8 CIEL, Plastics Industry Awareness of the Ocean Plastics Problem (Fueling Plastics Series, Issue 3) . 9 Kristian Syberg et al, ‘Regulation of Plastic from a Circular Economy Perspective’ (2021) 29 Science Direct 1 . 10 Ibid., 2. 11 For example, Dirk Xanthos and Tony R Walker, ‘International Policies to Reduce Plastic Marine Pollution from Single-Use Plastics (Plastic Bags and Microbeads): A Review’ (2017) 118 Marine Pollution Bulletin 17.

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as is the case with the management of many other products that have negative externalities, is subject to ongoing debate regarding responsibility and accountability. As the book will highlight, attempts to provide public oversight are subject to a number of resistance tactics, including advocacy of corporate self-regulation and the reliance on consumer responsibility as underpinning principles of governance.12

PLASTIC: A SOCIAL GOOD OR A SOCIETAL PROBLEM? While part of our common parlance, plastics are complex chemical-based products. Plastics are synthetic polymers that are produced via certain chemical processes (polymerization of monomers) mainly from fossil fuels with the addition of various chemical components to produce desired qualities of the final material.13 The etymology of the term “plastics” indicates that it is derived from Greek word plastikos, “fit for molding, capable of being molded into various forms”.14 Indeed, all plastics at some stage in manufacture are capable of flow and, therefore, they can be shaped, moulded, cast, spun or applied as a coating.15 The first form of plastic material, Bakelite, was created by Belgian chemist Leo Baekeland in 1907.16 However, it was not until after WWII that mass production of plastic (both durable and disposable) to meet the ever-growing consumption needs of a bulging global populace came into its own.17 An article titled, ‘Throwaway Living: Disposable Items Cut Down Household Chores’ that appeared in LIFE magazine 1 August 1955 edition in the U.S. paved the way to a new era: the era of disposable plastic framed as a societal good.18 Since then we have managed to welcome this material into virtually every aspect of our lives from clothing to food, buildings, appliances, communication, transportation, and medicine. 12 Peter Dauvergne, ‘Why is the Global Governance of Plastic Failing the Oceans?’ (2018) 51 Global Environmental Change 22. See also, Jennifer Clapp, ‘The Rising Tide against Plastic Waste: Unpacking Industry Attempts to Influence the Debate’ in Stephanie Foote et al (eds), Histories of the Dustheap: Waste, Material Cultures, Social Justice (MIT Press, 2012), 199. 13 Thompson et al, ‘Our Plastic Age’, 1974. 14 See . 15 Thompson et al, ‘Our Plastic Age’, 1974. 16 Silvia Katz, Classic Plastics: From Bakelite to High-Tech, with a Collectors Guide (Thames and Hudson, 1984). 17 Thompson et al, ‘Our Plastic Age’, 1974. 18 Anon, ‘Throwaway Living: Disposable Items Cut Down Household Chores’, Life (August 1955) 43.

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By the end of the twentieth century plastics became ubiquitous globally. They were marketed as the miracle product, lightweight, cheap, and available in a myriad of forms for countless uses.19 But such acceptance into society has come with a price. Plastics clog our waterways, foul the land, and are even found in microform in the air we breathe.20 Plastic pollution has become both omnipresent in that as scientists have noted “plastic is literally everywhere”, from the atmosphere to the Mariana Trench.21 For example, scientists estimate there is now 171 trillion bits of plastic waste in the world’s oceans amounting to two million tonnes.22 Plastic pollution is, therefore, omnipresent, pervasive and persistent. Thanks to the digital age, it is difficult to avoid the visual extent of the plastic waste problem. The Internet is flooded with images of polluted beaches, rivers and lakes, especially in the developing world.23 Corpses of birds, with their plastic filled stomach cavities,24 and dead whales with clumps of plastic bags in their stomachs25 illustrate the seriousness of the situation. Our current understanding of the plastic pollution problem and especially of its consequences and impacts on the environment and human health is still limited. Nevertheless, there are many warning signs that these impacts

19 Plastic is part of virtually every aspect of our lives and economies. Examples of sectors that utilize plastic include packaging; construction; electric and electronic applications; toys and leisure; energy generation; transport; furniture; and medical applications. For further information see Plastic Applications, . 20 Laura Revell, ‘Microplastics are in the air we breathe and in Earth’s atmosphere, and they affect the climate’, The Conversation (20 October 2021) . 21 Joanna Khan, ‘Plastic pollution: can the ocean really be cleaned up?’, The Guardian (22 March 2019). 22 Tom Hale, ‘There’s now 171 trillion bits of plastic pollution in the world’s oceans’, IFLScience (9 March 2023). 23 Any electronic newspaper article on plastic pollution is richly illustrated with disturbing images. See, for example Ian Johnston, ‘Scientist warns we could be breathing in microplastic particles laden with chemicals’, Independent (9 May 2016); Ian Johnston, ‘How plastic is damaging planet Earth’, Independent (28 September 2017); Anna-Lena Janzen and Nick Kilvert, ‘Diver Films Wave of Plastic Pollution off Bali on Scale “Never Seen Before”’, ABC News (6 March 2018) . 24 Chris Jordan, Midway: Message from the Gyre (2009-current) . 25 ‘Whale dies in Thai waters after swallowing 80 plastic bags’, ABC News (3 June 2018) .

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and consequences are significant and long-lasting. As we still learning of the extent of the problem, it is not surprising that the legal and regulatory responses to the issue are still in their infancy. While there is growing scientific evidence highlighting the challenges of plastic pollution, research that adopts a socio-political and legal perspective on the problem is still emerging. The aim of this book is to provide insight into these socio-political and legal implications of plastic pollution. The book does this by exploring regulation in a number of key jurisdictions and the current impediments to effective regulation. The book also proposes regulatory reforms where appropriate. It is hoped that this will initiate a broader discussion on this most vital and, currently, undertheorized and underexamined issue.

METHODOLOGY EMPLOYED The scope of the inquiry undertaken here is mainly qualitative26 research of a doctrinal nature27 married with a stakeholder28 analysis. We argue that to truly understand the strengths and weakness of the current regulatory frameworks, both national and international, pertaining to plastic regulation there is a need to both identify the key stakeholders as well as who will be the decision-makers in each case study. Therefore, to effectively examine the interactions between these actors the text will utilize a stakeholder theory approach that enables a richer understanding of the key players’ roles that are both complex and evolving.29 Such analysis can form an effective basis for a longitudinal, his26 Qualitative research here is defined as, “the interpretative study of a specified issue or problem in which the researcher is central to the sense that is made.” Ian Parker, ‘Qualitative Research’ in Peter Banister et al (eds), Qualitative Methods in Psychology: A Research Guide (Open University Press, 1994) 2. 27 The doctrinal method is the major legal research methodology. Elizabeth Fisher et al, ‘Maturity and Methodology: Starting a Debate about Environmental Law Scholarship’ 2009 21(2) Journal of Environmental Law 213–250. The doctrinal approach is defined here as: “research which provides a systematic exposition of the rules governing a particular legal category, analyses the relationship between rules, explains areas of difficulty and perhaps, predicts future developments.” Dennis Pearche, Enid Campbell and Don Harding, Australian Law Schools: A Discipline Assessment for the Commonwealth Tertiary Education cited in Terry Hutchinson, Researching and Writing in Law (3rd edn, Reuters Thomson, 2010), 7. 28 A stakeholder is defined as any person or organization that is impacted by, or causes an impact to, a company, government or other type of organization. R K Mitchell, B R Agle, and D J Wood, ‘Toward a Theory of Stakeholder Identification and Salience: Defining the Principle of Who and What Really Counts’ (1997) 22(4) Academy of Management Review 853–888, 854. 29 David N Pellow, Adam Weinberg and Allan Schnaiberg, ‘The Environmental Justice Movement: Equitable Allocation of Costs and Benefits of Environmental Management Outcomes’ (2011) 14(4) Social Justice Research 423–439, 427.

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torical study and is well suited to the type of investigation undertaken here. In addition, the book adopts a strong interdisciplinary approach to the problem of plastic pollution since this issue comes with various environmental, economic, social, and health dimensions that need to be explored. The book adopts a comparative approach to its regulatory analysis, focusing on a number of key jurisdictions and the international context. This will allow us to critically analyse different regulatory approaches currently adopted in plastic production, consumption and its attendant pollution. Moreover, instead of concentrating on a single type of plastics, such as plastic bags or micro-beads in cosmetics,30 this text will cover plastic pollution it its entirety, targeting both primary and secondary types of plastic pollution, whether it is terrestrial, airborne and marine. Finally, the book proposes that the most effective solution to the plastic waste crisis should be based on the facilitation of a “circular economy” approach. 31 The circular economy, also known as a “closed loop” economy, can be defined as a system, in which “resource input and waste, emission, and energy leakage are minimised by slowing, closing, and narrowing material and energy loops.”32 This can be achieved through long-lasting design, maintenance, repair, reuse, remanufacturing, refurbishing and recycling.33 The decoupling of the economic growth from primary resource consumption is the core idea of the circular economy concept.34

30 These items in isolation represent only a small part of the problem. For example, one study of plastic waste in the Mediterranean Sea showed that primary microplastic to which micro-beads belong represented only 5.6% of the total plastic debris. See Cristina Munari, Marco Scoponi and Michele Mistri, ‘Plastic Debris in the Mediterranean Sea: Types, Occurrence and Distribution along Adriatic Shorelines’ (2017) 67 Waste Management, 385. 31 See, for example Walter R Stahel, ‘Circular Economy’ (2016) 531 Nature 435; Eléonore Maitre-Ekern, Carl Dalhammar, and Hans Christian Bugge (eds) Preventing Environmental Damage from Products: An Analysis of the Policy and Regulatory Framework in Europe (Cambridge University Press, 2018); Ellen MacArthur Foundation, Towards the Circular Economy: Economic and Business Rational for Accelerated Transition, vol 1 (2013) ; Teresa Domenech and Bettina Bahn-Walkowiak, ‘Transition towards a Resource Efficient Circular Economy in Europe: Policy Lessons from the EU and the Member States’ (2017) 199 Ecological Economics 7–19. 32 Martin Geissdoerfer et al, ‘The Circular Economy: A New Sustainability Paradigm?’ (2017) 143 Journal of Cleaner Production 757, 759. 33 Ibid. 34 Nicky Gregson et al, ‘Interrogating the Circular Economy: the Moral Economy of Resource Recovery in the EU’ (2015) 44(2) Economy and Society 218, 219.

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As Sheila Aggarwal-Khan, Director of the Economy Division at UNEP argues: It is critical that we transition towards a circular approach that considers the plastics’ full life cycle – from the extraction of raw materials to end-of-life management – to minimize their impact on the planet.35

The nomenclature ‘lifecycle’ has been adopted as regards how to tackle the issue of plastic production and waste. A lifecycle approach is a way of thinking that considers the impacts of all the stages of a product or service’s lifecycle.36

BOOK OUTLINE Part I: The Plastic Pollution Problem, Definitions, Scope and Alternatives Chapter 1 introduces and explains various terms and concepts associated with plastic and plastic pollution. It explains the basic process of making plastic, and lists some of the main types of plastic polymers that are used in our society today. One of the main aims of the chapter is to highlight the importance of defining the scope of the problem of plastic pollution correctly. The chapter presents many dimensions of the plastic pollution, such as primary and secondary microplastics and nanoplastics, marine, terrestrial and atmospheric plastic pollution, illustrating the interconnected and multifaceted nature of the problem. It also summarizes the recent research on the extent and the effects of the plastic pollution on our planet and on our health, highlighting the rapid advancement in our scientific understanding of the problem and the lag between the science and regulation. The chapter demonstrates that focusing on just one of the aspects/dimensions of the plastic problem will not be effective, unless we keep the whole picture in our mind and attempt to tackle the root of the problem, which is our unsustainable reliance and consumption of everything plastic. Moreover, the chapter highlights the most popular proposed solutions to the problem, such as the improvements in solid waste management systems around the world, recycling and degradable plastics and analyses why none of them presents a perfect or effective solution on its own.

35 UNEP, ‘How can the lifecycle approach curb the plastic pollution crisis’, 27 July 2022, . 36 Ibid.

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Part II: National and Regional Regulatory Approaches to Plastic Having outlined some of the key features of plastics production and pollution and the challenges raised, Part II of the book critically analyses four jurisdictional efforts to deal with plastic: the United States of America (U.S.), China, Australia and the European Union (EU). Each of these chapters describes the plastic pollution problem as it relates to that jurisdiction and the current, and in some cases proposed, regulatory efforts to deal with the problem in those states. Following is a more detailed breakdown of the chapters. Chapter 2: Plastic regulation in the United States of America Fossil fuel production is highly localized, therefore plastic production is also concentrated in specific regions where fossil fuel developments present, e.g. Texas and Oklahoma.37 Overall, the U.S. has an abundant supply of natural gas, which is used in the production of ethylene – the most important base chemical in the plastic sector.38 It is no coincidence then, that the U.S. is also a home for some of the top global companies relevant to the global plastics industry, such as Dow Chemicals, ExxonMobil and Chevron Phillips.39 Cheap shale gas in the United States is fuelling massive new investments in plastics infrastructure in the U.S. and abroad, with $164 billion planned for 264 new facilities or expansion projects in the U.S. alone.40 The producers of polyethylene are expecting to increase production capacity by as much as 75% by 2022.41 In the words of the president of the American Chemistry Council:42 “…the United States is the most attractive place in the world to invest in chemical and plastics

37 CIEL, How Fracked Gas, Cheap Oil, and Unburnable Coal are Driving the Plastics Boom (Fueling Plastics Series, Issue 2), 1. 38 Erin Voegele, ‘Feeding the Chemical Market’, Ethanol Producer (5 March 2012), . 39 Top 10 plastics and resins Manufacturers, . 40 CIEL, How Fracked Gas, Cheap Oil, and Unburnable Coal are Driving the Plastics Boom (Fueling Plastics Series, Issue 2), 1. 41 Katherine Blunt, ‘Ethane Consumption Surges with Petrochemcial Boom: The Natural Gas Liquid is in Heavy Use as Shale Fields Raise Production’, Houston Chronicle (24 February 2018) . 42 An industry organization that represents major petrochemical companies and plastic resin producers in the United States. See Chapter 2 for a detailed explanation of the group and its role.

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manufacturing.”43 The U.S, is experiencing a true “plastic renaissance”, built on an assumption that the consumer demand for disposable plastic will grow.44 At the same time the U.S. is one of the largest world producers of plastic packaging and 34% of plastic resin in the U.S. is used to produce plastic packaging – one of the largest sources of plastic pollution.45 In terms of recycling rates, the U.S. lags behind the EU or Australia, with only about 9.1% for plastic waste in 2015.46 Moreover, in 2017 the U.S. sent around 70% of its plastic waste to China and Hong Kong.47 However, since China’s 2017 so-called “trash ban”48 was implemented, the U.S. had to find new markets for their plastic waste and they have been successful with India, Malaysia, Thailand and Vietnam becoming the main destinations for the U.S. plastic waste.49 Overall, about 81% of the exported plastics from the U.S. is now destined for Asia.50 This chapter outlines how the environmental damage done by plastic pollution within the U.S. has been increasing exponentially as the plastics industry, and related industries, ramp up production. The chapter details existing federal legislative efforts, as well as proposed bills that have as their main emphasis enhancements in waste disposal and recycling. These bills attempt to give effect to policies such as minimum recycled content standards; a beverage container deposit scheme; and extended packaging producer responsibility.51 The 43 CIEL, How Fracked Gas, Cheap Oil, and Unburnable Coal are Driving the Plastics Boom (Fueling Plastics Series, Issue 2), 3. 44 Ibid., 7. 45 See . 46 Environmental Protection Agency, Plastics: Material-Specific Data . 47 Joe Sandler Clarke and Emma Howard, ‘US Plastic Waste is Causing Environmental Problems at Home and Abroad’, Unearthed (5 October 2018) . 48 In 2017 China announced it would ban the importation of the majority of plastic waste (the Prohibition of Foreign Garbage Imports: the Reform Plan on Solid Waste Import Management) it had accepted to date along with 23 other forms of solid waste. Zongguo Wen, Yiling Xie, Muhan Chen and Christian Doh Dinga, ‘China’s plastic import ban increases prospects of environmental impact mitigation of plastic waste trade flow worldwide’ (2021) 425 Nature Communications 1–9, 1. 49 Joe Sandler Clarke and Emma Howard, ‘US Plastic Waste is Causing Environmental Problems at Home and Abroad’, Unearthed (5 October 2018) . 50 Ibid. 51 Kara Lavendar Law, Natalie Starr, Theodore R Siegler, Jenna R Jambeck, Nicholas J Mallos, and George H Leonard, ‘The United States’ Contribution of Plastic Waste to Land and Ocean’ (2020) 6(44) Science Advances 29.

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chapter finds that the federal approach to plastic pollution regulation is overly complex, fragmented and ineffective in its attempts to achieve stated goals. Given the failure of the federal government to “govern this field” it is imperative to understand the regulatory initiatives that have been implemented at the state and local level as well as the regulatory architecture governing plastic at the state level. The chapter, therefore, outlines a number of regulatory approaches in the states and through local ordinances. This analysis highlights the limited nature and effectiveness of these efforts in comprehensively dealing with plastic pollution in the U.S. The chapter ultimately concludes that challenges in the U.S. political framework provide ample opportunity for industry actors to oppose effective regulation in the U.S. In particular, industry actors have been successful in their efforts to frame plastic pollution as an individual, rather than collective, responsibility, and have prevented the implementation of local initiatives through legal avenues including reliance on “pre-emption” laws52 at the state level. The chapter also explores the global implications of the U.S. plastic pollution problem. While the U.S. is a major exporter of plastic waste to the rest of the world, it refuses to sign the Basel Convention on Hazardous Waste. This has considerable impacts on the effectiveness of global efforts to combat plastic pollution. The chapter concludes by making a number of recommendations that the U.S. must implement, at the federal, state and local level if they are to properly regulate the burgeoning plastics industry and its concomitant waste. Chapter 3: Plastic regulation in the People’s Republic of China This chapter will provide a review and critical analysis of China’s attempts at plastic pollution regulation, with a particular focus on the developments of the past decade.53 Initially, it will discuss the current scale of plastic production and consumption in China. At present, China accounts for nearly one-third of the total global plastic flow and is both the world’s largest producer and the 52 In the U.S. the legal doctrine of preemption allows higher levels of the state to restrict/prevent a lower-level government from taking self-regulating action. It has been adopted eagerly by a number of states to limit cities and counties, from legislating on issues such as plastic pollution. A lawatlas Project, The Policy Surveillance Program, . 53 Most of the legal documents, such as policy papers, plans, laws and regulations that are analysed in this chapter are available in Chinese only, so the author had to rely on the unofficial translations of these legal documents provided by various news outlets and academic publications and, as such cannot guarantee the accuracy of these translations.

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user of plastics.54 It is also one of the leading producers of plastic waste in the world, surpassed only by the U.S. and India.55 Analysis of plastic production and consumption in China is critical for understanding some of the motives of the key stakeholders involved and for developing solutions to address the problem. It will then outline and critique the regulatory approaches that are currently in place to deal with plastic pollution and identify the key stakeholders engaged in the plastic pollution regulatory debate. The focus of the discussion will be on the plastic waste import ban, as well as on the more recent restrictions and phaseouts covering a wide range of disposable plastic items, such as packaging, plastic bags and cutlery. Overall, this chapter aims to present a more comprehensive understanding of China’s efforts to reduce plastic pollution. In doing so, the discussion will highlight the hidden tension between the Chinese government’s push to produce more plastics both virgin petroleum based and degradable types, and its new environmental policy, which is directed at cleaning up three decades of environmental degradation and the creation of an “ecological civilization”56 based on the concept of the circular economy. It will be argued that while “downstream” or post-consumer solutions to plastic pollution, such as waste collection, recycling and disposal in China are evolving, “upstream” or pre-consumer solutions, such as the reduction of the production of plastics are lagging, as the Chinese plastic industry is set to grow. Ultimately, however, to decrease the rates of plastic pollution, these approaches must be applied in parallel, in line with the concept of circular economy.57 Chapter 4: Plastic regulation in Australia A total of 3,513,100 tonnes of plastics were consumed in Australia in 2016–17; only 11.8% of it was recycled.58 Plastic waste, especially plastic marine debris is becoming one of the biggest environmental problems in Australia, with 54 Xiaobin Jiang et al, ‘Assessment of Plastic Stocks and Flows in China: 1978-2017’ (2020) 161 Resources Conservation and Recycling 104969. 55 National Academies of Sciences, Engineering, and Medicine, Reckoning with the U.S. Role in Global Ocean Plastic Waste (The National Academies Press, 2021), 16. 56 Michael Standaert, ‘As It Looks to Go Green, China Keeps a Tight Lid on Dissent’ Yale Environment 360 (2 November 2017) . 57 Some academics argue that combining the maximum foreseen application of pre- and post-consumption solutions represents the most effective possible solution to plastic crisis (given current technology). See Winnie W Lau et al, ‘Evaluating Scenarios Toward Zero Plastic Pollution’ (2020) 369 Science 1455, 1459. 58 Australian Government, Department of Environment and Energy, 2016–17 Australian Plastics Recycling Survey (National Report, May 2018) 1.

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mean surface plastic concentration in waters around the continent at nearly 9,000 pieces per square kilometre, consisting mainly of small plastic debris (microplastic).59 The regulation of plastic waste in Australia is fragmented due to the fact that roles and responsibilities in relation to environment matters in Australia are shared between federal and state governments. This results in a situation where some aspects of plastic pollution are regulated at the federal level and some at the state level, without uniformity between the jurisdictions. Container deposit schemes, which are often used as an extended producer responsibility tool to combat plastic litter, have also been inconsistently introduced across Australian states and territories.60 This chapter starts by outlining the plastic consumption and recycling data by Australian states and territories obtained from the most recent 2017/18 figures. It then sets forth the federal approach to the issue examining the National Plastic Plan; the Australian Investment Recycling Fund; the Recycling and Waste Reduction Act 2020; and the Recycling Modernisation Fund. It then critically assesses the current state and territory approaches to plastic pollution/waste focusing on the plastic bag bans; single plastic current and proposed phaseouts; container deposit schemes; kerbside collection schemes; various city measures and recycling. It asks whether these approaches are “fit for purpose” as currently configured and sets forth what more needs to be done. It can be observed that the current regulatory approach appears to be to try a number of differing approaches, using the various jurisdictions as “crucibles” to test which approach works best. The chapter concludes by asking is this approach appropriate given the severity of the plastic pollution problem extent in Australia. Chapter 5: Plastic regulation in the European Union This chapter was co-authored by Caitlin Grover. About 18% of all plastics produced in 2016 have been produced in Europe.61 Around 26 million tonnes 59 Australian Government, Department of Environment, Water Heritage and Arts, Threat Abatement Plan for the impacts of marine debris on vertebrate marine life (2018) 9 ; Julia Reisser et al, ‘Marine Plastic Pollution in Waters around Australia: Characteristics, Concentrations, and Pathways’ (2013) 8 PLOS One. 60 Established in most states in territories, apart from Victoria and Tasmania. See . 61 Plastics Europe, Plastics: the Facts 2017. An Analysis of European Plastics Production, Demand and Waste Data. (Factsheet, 2018) Brussels, Belgium. Available at: .

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of plastic waste are generated in Europe every year. Less than 30% of such waste is collected for recycling, which is still one of the highest recycling levels in the world.62 Nevertheless, plastic is the most common type of litter found in the European seas.63 The annual European plastic discharge into the marine environment is estimated to be between 150,000 and 500,000 tonnes.64 The EU, whilst being the largest economy in the world overall,65 is not homogenous and consists of 27 states with major differences in social, economic and financial ranking. The EU Member States diverge in their adaptation and implementation of common environmental legislation, due to the enlargement of the EU to central and eastern European countries with weak environmental frameworks. This adds another dimension to stakeholder interaction in the EU and raises a number of concerns that plastic pollution measures across the Member States may be fragmented, differing in scope, focus and ambition level, widening the gap between leading and lagging states.66 It has been argued that presently the EU has one of the most advanced legal frameworks for dealing with disposable plastic waste, due the fact that this framework is underpinned by the circular economy model.67 The EU Commission has adopted a number of programmes, plans and policies, which act as building blocks towards the EU’s transition to resource efficient circular economy. At this moment, the overarching vision and strategy for the transition process is provided in the following key policy strategy documents: • Roadmap to a Resource Efficient Europe;

62 Julie Girling, ‘EU Finally Seems Ready to Respond to the Urgency of the Plastics Issue’, The Parliament Magazine (5 March 2018). 63 European Environment Agency, ‘Distribution of Marine Litter by Material Type’, 6 June 2018, . 64 Chris Sherrington et al at 254. 65 European Commission, . 66 Explanatory Memorandum of the RICPPE Directive, 6. For example, the amount of landfilling of waste varies greatly across the EU, with Austria being in the lead and many of the eastern states lagging behind. Adriana Neligan, Moving towards a circular economy: Europe between ambitions and reality (IW policy paper, No. 9/2016, Cologne Institute for Economic Research, 2016) 14. 67 European Commission (2011) Roadmap to a Resource Efficient Europe (COM 2011, 571); Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, ‘Closing the Loop – An EU Action Plan for the Circular Economy’ Brussels, 2.12.2015 COM(2015) 614 final.

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• Seventh Environment Action Programme; • Strategic Plan 2016–2020 of the Department of the Environment of the European Commission; • Closing the Loop – An EU Action Plan for the Circular Economy. In January 2018, pursuant to the EU Action Plan for the Circular Economy, the European Commission published the EU Strategy for Plastics in the Circular Economy (Plastics Strategy). The Plastics Strategy acknowledges that the current approach to plastics, based on the linear economic model, harms the environment and fails to capture the economic benefits of plastics as a valuable source of material.68 Therefore, this policy instrument establishes a “vision for Europe’s new plastic economy” by setting a list of specific targets and developing four sets of general measures to re-define and improve the lifecycle of plastic waste and “close the loop”.69 These measures intend to turn the problem into an economic opportunity, boosting innovation and curbing plastic pollution and its adverse impact on our lives and the environment.70 For example, the Plastics Strategy states that using more recycled plastics could reduce the EU’s dependence on the extraction of fossil fuels and reduce the CO2 emissions, in line with commitments under the Paris Agreement.71 The Plastics Strategy has fixed a target of all plastic packaging to be reusable or recyclable and more than half of all plastic waste actually being recycled by 2030 (which is in line with the EU commitment under the Ocean Plastics Charter, signed by the five states of G7 in 2018).72 It also highlights the need to develop additional legislative measures to tackle the habitual over-packaging and waste from single use plastic.73 In October 2018, in line with EU Action Plan for the Circular Economy, and the EU Plastics Strategy, the EU Parliament has approved the Directive on the Reduction of the Impact of Certain Plastic Products on the Environment – a landmark instrument, which stands out as a radical and yet comprehensive approach to dealing with some of the most common disposable plastic item

68 Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions A European Strategy for Plastics in a Circular Economy Brussels, 16.1.2018 COM(2018) 28 final (‘Plastics Strategy’) 1. 69 Plastics Strategy, 1. 70 Plastics Strategy, 1. 71 Plastics Strategy, 3. 72 This target is reflected in the recently amended European Parliament and Council Directive 94/62/EC of 20 December 1994 on Packaging and Packaging Waste [1994] OJ L 365; art 6 of which states that by 31 December 2030, 55% of all plastic packaging would be recycled. See below. 73 Plastics Strategy, 11.

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types as the Directive attempts to regulate their entire lifecycle – production, distribution, recycling and disposal – via a number of methods and tools. The Directive on the Reduction of the Impact of Certain Plastic Products on the Environment is the first comprehensive attempt to deal with disposable plastic waste on a regional level. Rather than prescribing a “one size fits all approach”, it matches various types of plastic waste with a combination of regulatory methods or tools, best suited for the characteristics of the particular type of waste and the problems that they pose. The Directive targets the ten most common single-use plastic items that represent about 43% of all litter found on European beaches, as well as lost and abandoned fishing gear, which represents 27% of the marine litter found on the European beaches by count.74 The items, ranging from food containers to tobacco product filters, are grouped in Parts A to G under Annex to the proposed directive.75 The EU is perceived as being uniquely positioned to respond to the plastics problem and to be a global leader in the regulation of plastics. As noted above, the European Parliament and the Council have passed several Directives aimed at reducing plastic waste, reducing consumption of plastics, improving rates of recycling of plastic and incentivizing producers to improve collection and waste management of their products. In reality, as this chapter will show, Member States’ implementation is very diverse. All in all, the example of the European Union is one of “incremental” adoption of laws with increasingly stringent requirements. Even when properly implemented however they arguably do not add up to the kind of systemic approach to production and consumption in general, and that of plastics in particular, which is required to address the substantive excesses of the Anthropocene of which plastics pollution is only one, if a potent, example.

RICPPE Directive Proposal 1. European Commission, Annex to the Directive of the European Parliament and of the Council on the reduction of the impact of certain plastic products on the environment, Brussels, 28.5.2018 COM(2018) 340 final. (‘Annex to RICPPE Directive Proposal’) . 74 75

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Part III: Global Context of Plastic Usage and Pollution Chapter 6: Current international law and plastic At present, plastic as a transboundary pollutant is not addressed under a single legally binding international instrument, but is weakly distributed amongst many, such as the: • United Nations Convention on the Law of the Sea (UNCLOS)76 (plastic pollution could fall under either article 194 or 207, but both provisions are very limited in their application);77 • Stockholm Convention on Persistent Organic Pollutants (targets certain chemicals used in plastic production);78 • Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal (applies only to specific plastics or plastic additives that are considered hazardous);79 • Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (MARPOL) which targets pollution from vessels only;80 • International Convention for the Prevention of Pollution from Ships (London Convention) that targets pollution from vessels only.81 Currently, these instruments do little to prevent the problem from occurring (for example, none of the instruments target plastic production rates). Moreover, when compared with other fields of environmental regulations, there is complete lack of binding targets for plastic pollution reduction and

(adopted 10 December 1982, entered into force 16 November 1994) 1833 UNTS

76

3.

77 Article 194 of the UNCLOS obliges Member States to take measures to prevent, reduce and control pollution of the marine environment, but plastics only fit into the list of specific kinds of pollutions states shall combat if they are toxic, harmful or noxious substances. Article 207 of the UNCLOS requires states to take measures to prevent, reduce and control pollution from land‐based sources. The reach of this provision is limited by the reference to vague and broad “internationally agreed rules, standards and recommended practices and procedures.” See Giulia Carlini and Konstantin Kleine, ‘Advancing the international regulation of plastic pollution beyond the United Nations Environment Assembly resolution on marine litter and microplastics’ (2019) 27 RECEIL 234, 236. 78 (adopted 22 May 2001, entered into force 17 May 2004) 2256 UNTS 119. 79 (adopted 22 March 1989, entered into force 5 May 1992) 1673 UNTS 126. 80 (adopted 29 December 1972, entered into force 30 August 1975) 1046 UNTS 120. 81 (adopted 2 November 1973, entered into force, as modified by the Protocol of 1978, 2 October 1983) 1340 UNTS 184.

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compulsory timelines.82 At most, they target plastic waste dumped from the vessels, which represents a tiny fragment of the total amount of plastic waste that gets into the ocean via rivers.83 This chapter will identify and focus on the interactions between key stakeholders, including states, the international plastic and hydrocarbon industry, and international NGOs involved in negotiating the approaches to regulating plastic pollution on the international level. It will be argued that the current international regulatory framework for plastic and plastic pollution is weak, fragmented and does not address the root of the problem leading to the need to create an overarching global regime to resolve the issue of plastic and its concomitant transboundary pollution. Chapter 7: Crafting a global plastics treaty This chapter will critically examine the current international negotiations seeking to create a global plastics instrument. The UN Environmental Assembly (UNEA) has made plastic and microplastic waste the subject matter of two resolutions in 201484 and 2016,85 recognizing that the problem of plastic waste is a, “rapidly increasing serious issue of global concern that needs an urgent global response.”86 Plastic waste was also one of the core subject matters of the third UNEA in Nairobi in December 2017. The UNEA Report on marine plastic litter and microplastics, prepared for the third UNEA proposed two main potential solutions to plastic pollution crisis to be considered. The first option is to combat plastic litter using the existing framework of international, regional and sub-regional environmental treaties and agreements. However, the report acknowledges that the current framework is very fragmented and has major gaps. A high level of coordination and expansion of the scope of these different instruments will be required to reduce the gaps, which might be very difficult to attain.87

82 See Giulia Carlini and Konstantin Kleine, ‘Advancing the international regulation of plastic Pollution Beyond the United Nations Environment Assembly Resolution on Marine Litter and Microplastics’ (2019) 27 RECEIL 234, 236. 83 See . 84 United Nations Environment Assembly of the United Nations Environment Programme, Marine Plastic Debris and Microplastics, UNEP/E.A.1/L.6, First session, 27 June 2014. 85 United Nations Environment Assembly of the United Nations Environment Programme, Resolution on Marine Plastic Litter and Microplastics, UNEP/EA.2/ Res.11, Second session, 23–27 May 2016. 86 Ibid, art 1. 87 United Nations Environment Assembly of the United Nations Environment Programme, Combating Marine Plastic Litter and Microplastics: An Assessment of the Effectiveness of Relevant International, Regional and Subregional Governance

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The second option proposed by the UNEA report was to adopt an entirely new international legally binding instrument to regulate the plastics industry at a global level. The new treaty could provide a cohesive and robust approach to reducing the quantities and impact of plastic litter and microplastics by “targeting urgent and significant global curtailment in the leakage of plastic waste into the environment.”88 The purpose of this chapter is to critically analyse the current effort of the international community in creating a potential global framework for dealing with plastic waste by UNEA-6 in 2024. It will first outline the stakeholder positions regarding the need and contours of an international plastics instrument necessary to resolve global plastic pollution, both for and against such a document. Then the various negotiation meetings fostered by UNEA on this issue starting in 2014 will be considered as to their effectiveness in providing a “roadmap” for negotiations. Representatives at that meeting highlighted that the threat of marine litter, including plastics and microplastics, was a global issue of pressing concern, given the long period of decay of plastics, their potential for long-distance transport and their tendency to disintegrate into extremely harmful microparticles was an urgent issue that needed to be dealt with.89 It will then scrutinize the role played by the Ad hoc Open-ended Expert Group in driving the negotiating process forward. This section will focus in particular on the draft resolutions offered by Peru-Rwanda, India and Japan for potential adoption at the 2022 UNEA 5.2 Meeting as a basis for ongoing discussions to create a global plastic treaty. The negotiations culminated in the UNEA 5.2 meeting in Nairobi, Kenya. However, to truly understand the outcome of that conference, the events leading up to it including the Resumed meeting of the Fifth Open-ended Committee of Permanent Representatives (OECPR) need to be carefully examined.

Strategies and Approaches (Third session Nairobi, 4–6 December 2017 Items 8 and 5 of the provisional agenda (UNEP/EA.3/INF/5) 5 October 2017) 74 (‘Combating Marine Plastic Litter and Microplastics’). Other studies have also shown that the existing international framework might not be adequate to deal with the problem effectively, as plastic and microplastic litter is not a primary objective of any of the existing instruments. See Nils Simon and Lili Fuhr, Stopping Global Plastic Pollution: The Case for an International Convention, Publication Series Ecology, vol 43 (Heinrich-Böll-Stiftung, 2017). See also Karen Raubenheimer, Towards an Improved Framework to Prevent Marine Plastic Debris, Australian National Centre for Ocean Resources and Security (ANCORS), University of Wollongong, Australia, 2016. 88 Combating Marine Plastic Litter and Microplastics, 14. 89 UNEP/E.A.1/10, United Nations Environment Assembly of the UNEP, First Session (Nairobi, 23–27 June 2014), 13.

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The UNEA 5.2 delegates took a “historic step” towards ending plastic pollution with the adoption of the resolution, End Plastic Pollution: Towards an International Legally Binding Instrument. This will be unpacked and considered for its potential as a template for future action in this space. The response by stakeholders to the resolution being agreed to will also be sketched out. Then the creation of an Intergovernmental Negotiating Committee process by an ad hoc Open-ended Working Group (OEWG) will be analysed with a focus on the first meeting in Dhaka, Senegal in May 2022. That summit was meant to put forth a timeline and process for negotiations for future INC meetings but struggled to do so and the reasons why will be delineated. In the conclusion some thoughts will be offered on the likelihood of the proposed convention meeting its deadline will be proffered. A new international legally binding instrument could complement, without undermining or duplicating, existing instruments and would be able to provide legislative security to states. Moreover, it would ensure a level playing field where all competitors are subject to the same regulations, which is essential for the industry, comprising largely of the multinational companies.90 Chapter 8: Drafting/developing the components of an effective global plastics treaty This chapter critically evaluates key elements and considerations a successful global plastic treaty will need to incorporate. It argues that any new plastic treaty will need to adopt an approach that is cohesive, strong, coordinated and effective and effects all major sources of plastic pollution: land, air and marine plastic pollution. The chapter also maintains that all the phases of the plastics lifecycle including the ‘production, manufacturing, consumption and disposal’ phases should be incorporated into any agreement. It then examines the ongoing debate about how to properly define plastic and considers whether any treaty should have binding or voluntary provisions arguing that binding goals are preferable. The chapter then examines the strategic goals any such treaty should exemplify including lifecycle and recycling limitations and considers the vexed question of appropriate penalties and the various models currently extent that could be incorporated in this agreement. How to fund treaty commitments will also be considered with various options put forward and debated as to the most efficacious including whether the Global Environmental Facility or the Multilateral Fund would be the best vehicle for disbursement of funds. The key question of effective enforcement and compliance/monitoring of the agreement will be scrutinized as well as how best to foster collaboration Ibid, 125.

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between the key stakeholders. It then considers the need for a reduction in ‘virgin’ or new sources of plastic and how best to deal with the issue of ‘legacy’ plastic waste still in the biosphere. The chapter then considers how global civil society can facilitate cooperative action and contemplates the vital role the principle of common but differentiated responsibility can play in ensuring lesser developed states concerns around state responsibility and costs are ameliorated. The creation and nature of a scientific advisory group is then analysed along with the need for flexibility and how any treaty could inform domestic law and policy but also act against those non-party states or entities not conducting their operations in accordance with the agreed provisions. It will then critically examine how such a global plastics agreement should integrate with existing UN environmental treaties. Lastly, it will then consider the vital question of whether the climate-based Paris Agreement (2015) or the Montreal Protocol on Substances that Deplete the Ozone Layer (1987) should be the model the plastics treaty is based on. Conclusion: the current international response to the regulation of plastic In the conclusion, we make some final comments on plastic regulation starting with an overview of the challenges plastic pollution regulation has faced to date. It then initiates a discussion on how we might be able to move from a linear approach to the problem of plastic creation and pollution to a viable circular economic system on the product. To that end we propose a multifaceted approach which outlines different common strategies that can be adopted. These include examining command and control regulatory mechanisms; economic instruments, e.g. deposit refund schemes and extended producer responsibility schemes; the better eco-design of plastic products; the criticality of information strategies and educational campaigns; and the importance of plastic recycling to any viable circular economy model. The section then makes some remarks on the current international regulatory approach to plastic production and the ongoing attempts to create a global plastic treaty and concomitant regime. Lastly, it questions what further research is needed in this space if we are to tackle this serious but, to date, undertheorized and under researched issue in an effective and timely manner.

PART I

The plastic pollution problem, definitions, scope and alternatives

1. The plastic pollution problem, definitions, scope and alternatives There are many ways to define and understand the term “plastic”. Plastic may refer to plastic polymers, or plastic polymers with added chemicals. Plastic may also refer to pre-production plastic material. Most commonly, however, “plastic” refers to end-products, such as plastic toys, straws, cups, bags and containers. For example, Cambridge Dictionary defines plastics as “things that are made from plastic.”1 When it comes to plastic pollution, the focus is usually on plastic end-products and especially on plastic waste (usually the disposable items get all the attention, cups, straws, cutlery, bags, etc). The problem is, however, a lot broader than that. The plastics lifecycle includes extraction of raw materials; design and production (described below in more detail); packaging and distribution; use and maintenance; and recycling, reuse, recovery or final disposal, at which point it becomes plastic waste. However, plastics can escape into the environment at every stage of their lifecycle. During production, transport or conversion, plastic pellets or fibres may be lost.2 Moreover, each stage of the plastic lifecycle carries various health and environmental implications, some already known, with a lot of uncertainties and data gaps. By focusing only on the last stages of the lifecycle, we are potentially overlooking the rest of the plastic pollution problem. The definition of plastic is critical for the purposes of effective plastic pollution regulation, as it helps to define the scope of the problem, and consequently, assists in identifying potential solutions. If, for instance, plastic is defined merely as plastic waste, or disposed manufactured plastic items, then the scope of the solution will likely be limited to end-of-pipe approaches (i.e. the ones that target pollutants when they have already entered the stream).3



See . UNEP, Drowning in Plastics – Marine Litter and Plastic Waste Vital Graphics (2021) (UNEP, Drowning in Plastics), 13. 3 End-of-pipe methods are ones used to remove already formed contaminants from a stream of air, water, waste, product or similar. These techniques are called “end-of-pipe” as they are normally implemented as a last stage of a process before the stream is disposed of or delivered. 1 2

2

The plastic pollution problem, definitions, scope and alternatives

3

Therefore, for the purposes of this book and in order to adopt a broader view of the problem, the term “plastics” should be defined as per the Oxford Dictionary of Chemistry: plastics are materials, mainly made from polymers, that can be shaped by applying heat or pressure.4 Overall, 99% of plastics are produced from petrochemicals that are sourced from fossil fuels, such as oil, gas and coal and are not biodegradable.5 While the terms plastic polymers and plastic materials are sometimes used interchangeably,6 a clear distinction must be drawn between them: • Polymers are the virgin products of the chemical/petrochemical industry.7 These have not undergone significant post-reactor treatments. Polymers are produced via certain chemical processes (polymerization of monomers) mainly from fossil fuels, such as oil, gas and coal. • Plastic materials are polymers, which have been modified in some way. This modification may include the addition of additives (plastic chemicals) and processing under pressure and/or heat. The materials are then ready to be converted into plastics artifacts/products.8 The definition adopted for the purposes of this publication may not adequately capture the regulation of polymers and plastic chemical additives. Many of these additives are considered potentially toxic and can be released into the environment during the development stage or as discarded waste.9 However,

4 Richard Rennie and Jonathan Law (eds), A Dictionary of Chemistry (7th edn, Oxford University Press, 2016) “Plastics”. 5 Roland Geyer, Jenna R. Jambeck and Kara Lavender Law, ‘Production, Use, and Fate of all Plastics Ever Made’ (2017) 3(7) Science Advances (Geyer et al, ‘Production, Use, and Fate’). 6 For example, the United Nations Environment Programme (UNEP) report of 2016 defines the term “plastic” as a group of synthetic polymers. See UNEP, Marine Plastic Debris and Microplastics – Global Lessons and Research to Inspire Action and Guide Policy Change (Nairobi, 2016) (UNEP, ‘Marine Plastic Debris’), 26. 7 There are naturally occurring polymers, but they are not relevant for the purposes of this publication: UNEP, ‘Marine Plastic Debris’, 26. 8 OECD, Emission Scenario Document on Plastic Additives (Environment Directorate Joint Meeting of the Chemical Committee and the Working Party on Chemicals, Pesticides and Biotechnology, 9 July 2009, ENV/JM/ MONO(2004)8/REV1) 20 (OECD, Emission Scenario Document). 9 See, for example, A A Koelmans, T Besseling and E M Foekema, ‘Leaching of Plastic Additives to Marine Organisms’ (2014) 187 Environmental Pollution 49 (Koelmans et al, ‘Leaching of Plastic’); Hans Bouwmeeste, Peter Hollman and Ruud Peters, ‘Potential Health Impact of Environmentally Released Micro- and Nanoplastics in the Human Food Production Chain: Experiences from Nanotoxicology’ (2015) 49

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this book focuses on plastics in general as a socio-political and legal phenomenon.10 It will not, therefore, cover plastic polymers on their own and/or plastic chemicals and their regulation, an important issue that is worthy of its own study. This chapter first outlines the most common categories and applications of plastic. Then the chapter also analyses, at a broad level the scope of the plastic pollution problem and its multiple facets (marine, atmospheric and terrestrial), highlighting one of the main challenges faced in dealing with it, the oil and gas industry resistance. Finally, it considers some of the most popular proposed solutions to the current plastic crisis: improved solid waste management and recycling as well as the increase in degradable plastics production, and explains why caution should be exercised in over-relying on them without addressing the bigger picture of the overall plastic production and consumption.

A DEEP DIVE INTO PLASTICS Plastics are generally divided into two broad categories: thermosets and thermoplastics. The main difference between these two categories is that after thermosets are heated and formed into a particular shape, these plastics cannot be re-melted and reformed. Examples of thermosets include fibreglass (a fibre-reinforced thermoset) and melamine.11 Thermoplastics can be re-heated and reshaped indefinitely. A common example of thermoplastics is polyvinyl chloride or PVC. About 80% of all consumed plastics are thermoplastics.12 This categorization is important for the purposes of recycling. While thermoplastics are easier to recycle, recycling

Environmental Science and Technology 8932 (Bouwmeeste et al, ‘Potential Health Impact’). See generally, John N Hahladakis et al, ‘An overview of chemical additives present in plastics: Migration, release, fate and environmental impact during their use, disposal and recycling’ (2018) 15(344) National Library of Medicine 179–199 . 10 See, for example, Koelmans et al, ‘Leaching of Plastic’ and Bouwmeeste et al, ‘Potential Health Impact’. These additives in many cases have been shown to have negative effects on the biosphere and individual organic life. They require separate analysis. 11 Hanna Dodiuk-Kenig and Sidney H Goodman (eds), Handbook of Thermoset Plastics (3rd edn, Elsevier, 2013). 12 PlasticsEurope, Plastics – the Facts 2017: An Analysis of European Plastics Production, Demand and Waste Data (Association of Plastics Manufacturers, 2017) (PlasticsEurope, Plastics – the Facts 2017), 8.

The plastic pollution problem, definitions, scope and alternatives

5

possibilities are a lot more limited for thermosets (most of them cannot be recycled at all).13 The main stages of plastic production are as follows: 1. Polymer manufacture: Monomer chains are linked together via a chemical reaction called polymerization to make polymers (e.g. polyethylene). This is usually undertaken by chemical and petrochemical companies. The resulting materials take the form of either thermoplastics polymers or thermosetting resins. 2. Compounding: involves the blending into the polymers of various types of additives, including fillers, reinforcements and colours to meet the requirements of specific applications for plastics materials. The process of compounding during which additives are incorporated into plastics can take place either during: • polymer production; • a secondary process with the specific function of compounding, often undertaken by specialist companies; or • the final conversion process. 3. Conversion: conversion into other plastics products is carried out using a diversity of processes. In the case of thermoplastics, the materials are shaped by heat and pressure using moulding, extrusion and other processes. Thermosetting resins are similarly cured under heat and pressure, although some resins are capable of being cured at ambient temperatures. Thermosetting processes are irreversible.14 Plastic production processes ensure that plastics are extremely versatile and, therefore, ideal for a wide range of consumer and industrial applications.15 Indeed, there is a multitude of different types of plastic with a wide variety of properties to meet each manufacturer’s functional and/or aesthetic requirements.16 Yet, although literally hundreds of plastic materials are commercially available, only a handful of these qualify as commodity plastics, as they are cheapest to produce and the most common. They are: • polyethylene (represents 32% of global demand) that comes either: • in a low density form – LDPE (used in bin bags, film), or

13 Mohammadjavad Kazemi, Sk Faisal Kabir and Elham H. Fini, ‘State of the Art in Recycling Waste Thermoplastics and Thermosets and Their Applications in Construction’ (2021) 174 Resources, Conservation and Recycling 105776. 14 OECD, Emission Scenario Document. 15 PlasticsEurope, ‘What Are Plastics?’ . 16 PlasticsEurope, Plastics – the Facts 2017, 8.

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• • • • •

in a high density construct – HDPE (used in shopping bags, bottle caps); polyethylene tetraphthalate (represents 7% of global demand) – PET (for bottles, food trays); polypropylene (represents 23% of global demand)– PPL (rigid tubs, straws); polyvinyl chloride (represents 16% of global demand)– PVC (pipes, door and window frames); and polystyrene (represents 7% of global demand), both rigid – PS (for food pots, toys) and expanded – EPS (used in packaging, insulation).17

These standard types of plastic constitute approximately 85% of world plastic consumption by weight.18 The largest consumers of plastics is currently the packaging industry, accounting for close to 40% of total plastic use, followed by consumer goods (20%); construction materials (20%); automotive (9%); electrical (6%); and agriculture applications (3%).19 There are two important types of primary feedstock (polymers) used to create these five commodity plastics. First is ethylene, which is produced primarily from liquid natural gas (LNG) or from naphtha – a product of crude oil refining. Second is propylene, which is usually a co-product of ethylene production.20 Both types of feedstocks can also be produced from coal, although this is mainly done in China, where the lack of natural gas and oversupply of coal drives this type of production.21 As mentioned above virgin plastic polymers are rarely used by themselves and typically, they are mixed with various additives to improve performance and to create plastic materials. Indeed, due to the additives, there is a multitude of different types of plastic with a wide variety of properties to meet various requirements.22 These additives include inorganic fillers such as carbon and 17 Gerald Scott, Polymers and the Environment (Royal Society of Chemistry, 1999) 1–132. CIEL, How Fracked Gas, Cheap Oil, and Unburnable Coal are Driving the Plastics Boom (Fueling Plastics Series, Issue 2) (CIEL, How Fracked Gas), 2. 18 PlasticsEurope, Plastics – the Facts 2017. 19 Boris Worm et al, ‘Plastic as a Persistent Marine Pollutant (2017) 42 Annual Review of Environment and Resources 1 (Worm et al, ‘Plastic as a Persistent’) 2–3. 20 Yet, there is a strong push to make propylene directly, and not as a co-product of ethylene in order to avoid the “propylene gap” created by new methods of ethylene production, which result in almost no propylene. CIEL, How Fracked Gas, 2. 21 CIEL, How Fracked Gas, 5–6. There are new plans in China to invest into coal production for the purposes of making polyester yarn. See Chen Aizhu, ‘China’s Hengli makes bold $20 billion bet to spin coal into fabric’, Reuters (29 July 2020) . 22 PlasticsEurope, Plastics – the Facts 2017, 8. One of the biggest recent studies on chemicals in plastic published in July 2021 identified 10,547 substances (24% are

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silica that reinforce the material,23 plasticizers to render the material pliable, antioxidants, biocides, flame retardants, fillers, colourings, odour agents and others. Processing aid chemicals are also used, such as stabilizers, solvents and lubricants.24 Whilst this book is not going to deal with the regulation of these additives, it is important to mention them, as many of them play are a significant aspect of the plastic pollution problem. Size Matters It has been said that plastic is a problem, “that gets bigger, the smaller it becomes.”25 While there is currently no consistent approach to the classification and measurements of plastics,26 this publication will adopt the following most commonly used definitions. Macroplastics27 – plastic pieces larger than 5 mms,

plastic monomers themselves, 55% are chemical additives and 39% are processing aids, although there are significant overlaps in these categories) that are used in plastic production. Helene Wiesinger, Zhanyun Wang and Stefanie Hellweg, ‘Deep Dive into Plastic Monomers, Additives, and Processing Aids’ (2021) 55 Environmental Science and Technology 9339 (Wiesinger et al, ‘Deep Dive’). 23 John Meeker, Sheela Sathyanarayana and Shanna H Swan, ‘Phthalates and other additives in plastics: human exposure and associated health outcomes’ (2009) 364(1526) Philosophical Transactions of the Royal Society B 2097–2113. 24 Wiesinger et al, ‘Deep Dive’ 9343. 25 Nils Simon and Lili Fuhr, Stopping Global Plastic Pollution: The Case for an International Convention, Publication Series Ecology, vol 43 (Heinrich-Böll-Stiftung, 2017) (Simon and Fuhr, Stopping Global) 9. 26 Valeria Hidalgo-Ruz, ‘Microplastics in the Marine Environment: A Review of the Methods Used for Identification and Quantification’ (2012) 46 Environmental Science and Technology 3060 (Hidalgo-Ruz, ‘Microplastics’) 3060. M Claessens et al, ‘Occurrence and Distribution of Microplastics in Marine Sediments along the Belgian Coast’ (2011) 62 Marine Pollution Bulletin 2199 (Claessens et al, ‘Occurrence’). For example, Barnes et al broadly categorizes plastic waste into: macro-debris (>20 mm diameter), meso-debris (5–20 mm), micro-debris (100 mm): David K. A. Barnes et al, ‘Accumulation and Fragmentation of Plastic Debris in Global Environments’ (2009) 364 Philosophical Transactions of Royal Society B 1985 (Barnes et al, ‘Accumulation’) 1986. Worm et al distinguishes four classes of plastic waste: nanoplastic, microplastic, mesoplastic (5–200 mm) and macroplastic items (>200 mm): Worm et al, ‘Plastic as a Persistent’. Inconsistency exists regarding characterization of microplastics. It has been attributed with numerous size-ranges, varying from study to study, with diameters of . 67 Larissa Copello et al, ‘Moving on from single-use plastics: How is Europe doing? Assessment of European countries’ transposition of the Single Use Plastics Directive’ (Surfrider Foundation, July 2021) 16. 68 Ibid.

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Romania transposed the Directive into legislation in September 2021, incorporating the standards as proposed in the Directive. The consumption reduction target is quite modest, with producers of single-use plastics required to progressively reduce quantities placed on the market in 5% increments each year, with a goal of a 20% reduction in consumption by 2026, when compared to 2022 levels. All other measures are as provided for in the Directive.69 Bulgaria’s enactment of Directive requirements was delayed due to ongoing domestic political uncertainty in which no government was formed following parliamentary elections in April 2021, with subsequent elections having to be held to allow for the formation of government.70 The newly appointed government passed an ordinance in November 2021, giving effect to each of the Directive requirements.71

COUNTRIES WHERE PLASTICS REGULATION IS PIECEMEAL Many countries have partially transposed the Directive by only legislating some of the required measures. This is problematic given that the measures are complementary and each reinforces the strength of the circular economy as a whole. There are significant gaps, for instance, in Austria’s implementation of single-use plastic regulatory measures. It has adopted legislation on the banned items, consumption reduction targets and labelling requirements, however, there is no EPR in place, design requirements have not been mandated and there is no national awareness-raising programme.72 In the Netherlands, measures supporting design requirements, bans on listed items, EPR schemes and the separate collection of bottles have been legislated, however, consumption reduction targets have not been confirmed and there is no national awareness-raising programme.73 Consumption reduction targets for single-use plastic food containers and an awareness campaign are critical in the Dutch context, where the emphasis of sustainability has been on recycling rather than reducing consumption. This is contrary to the waste hierarchy, in which waste prevention is at the apex, followed by preparing for re-use and

Ibid. Ibid, 16. 71 KPMG, ‘New Ordinance on Reduction of the Impact of Certain Plastic Products on the Environment’, January 2022 . 72 Copello et al (n 66) 10. 73 Ibid, 44. 69 70

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then recycling.74 Further, high rates of recycling can be somewhat misleading, especially when plastic waste that is exported to the Global South is described as “recycled”, despite the fact that there is little capacity for sustainable recycling of plastic waste in destination countries.75 For a country that exported 15.1 million kg/month of plastic waste to non-OECD countries in 2021,76 it is suggested that the claimed recycling rate of 51% is actually closer to 23% when taking into account that exported plastic waste cannot be guaranteed to be recycled.77 A shifting emphasis to consumption reduction through the implementation of targets and a national awareness-raising campaign presents an opportunity for the Netherlands to strengthen the circular economy for plastics. Sweden has transposed many Directive measures, with the exception of the design requirements and a national awareness-raising programme. A positive aspect of Sweden’s implementation of measures is an ambitious 50% consumption reduction target for single-use plastic cups and food containers by 2026, compared to 2022 levels, sharing with Spain the most ambitious target.78 Sweden is also planning to ban plastic cups containing more than 10% plastic and the use of confetti containing plastic outdoors. Italy’s implementation of single-use plastic regulatory measures is problematic. Design requirements, the separate collection of plastic bottles, marking requirements and awareness-raising have been implemented, however, there is no consumption reduction target and consultation on EPR schemes is ongoing.79 Further, certain measures that have been legislated derogate from the Directive, thereby undermining the capacity for legislated measures to promote a circular economy for plastics. The ban on listed single-use plastic products has been adopted, however, Italy is seeking an exemption for biodegradable and compostable items. The Italian decree provides an exemption from the ban for single-use plastic products that are biodegradable or compostable if certain conditions are met.80 This is contrary to the Commission Guidelines 74 Directive 2008/98 on Waste and Repealing Certain Directives [2008] OJ L 312/1, art 4. 75 Basel Action Network, ‘European Union Export Data’, May 2022 . 76 Ibid. 77 Martin Calisto Friant et al, ‘Transition to a Sustainable Circular Plastics Economy in the Netherlands: Discourse and Policy Analysis’ (2022) 14 Sustainability 190, 205. 78 Ordinance 2021:996 Measures for More Sustainable use of Single-use Plastic, Svensk författningssamling, 8 November 2021, section 24. 79 Legislative Decree 196/2021, 8 November 2021, GU General Series n.285 of 30-11-2021 – Ordinary Suppl. N. 41. 80 Ibid, art 5(3).

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which state that the definition of plastic includes bio-based and biodegradable plastics regardless of whether they are derived from biomass or are intended to biodegrade over time.81 Further, the Italian decree explicitly excludes from the definition of “plastic”, products where the element of plastic is coating that weighs less than 10% of the total weight of the product.82 Again, this is contrary to the Commission Guidelines which state that composite products made partly from plastic that are not designed for multiple use constitute “plastic” and are within scope of the Directive. The Commission Guidelines note that the inclusion of these items in the scope of the Directive is necessary to prevent and reduce the impact of products made partly of plastic that are prone to becoming litter that poses risks in particular marine ecosystems, biodiversity and human health.83 It is also necessary to achieve the objective of promoting the transition to a circular economy with innovative and sustainable business models that prioritize sustainable and non-toxic reusable products and reuse systems, rather than single-use products.84 Italy’s deficient transposition of Directive priorities undermines the capacity of the measures to develop a circular economy for plastics, thereby hampering the scope in Italy for measures to reduce plastic waste, improve reuse and recycling of plastic and increase the use of sustainable alternatives.

COUNTRIES APPROACHING TOTAL IMPLEMENTATION Most remaining Member States have implemented the suite of measures, with a single exception. Croatia has implemented all Directive measures, with the exception of a consumption reduction target for single-use plastic food containers and beverage cups.85 The Czech Republic, Italy, Slovakia, Romania and Norway are also yet to implement consumption reduction targets.86 Binding specific consumption reduction targets for single-use plastic food containers and beverage cups act as a central goal for mobilizing action across the entire

81 Commission notice: Commission guidelines on single-use plastic products in accordance with Directive (EU) 2019/904 of the European Parliament and of the Council on the reduction of the impact of certain plastic products on the environment (2021/C 216/01) 2.1.3. 82 Legislative Decree 196/2021, 8 November 2021, GU General Series n.285 of 30-11-2021 – Ordinary Suppl. N. 41, art 3(1)(a). 83 Commission notice (n 80) 2.2.1. 84 Ibid. 85 Waste Management Act, Narodne Novine No 84/2021, 31 July 2021. 86 Copello et al (n 66).

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plastics value chain and ought to be implemented so as to strengthen the circular economy for plastics. Finland has legislated measures to achieve most of the Directive priorities, with the exception of the design requirements.87 Targets for recycled content for single-use plastic bottles are a key measure for encouraging design adaptation towards greater sustainability. Legislating minimum requirements for recycled content is the most effective method of ensuring that recycled content increases in single-use plastic products. Slovenia, Germany and Denmark have adopted legislation for most of the Directive measures, with the exception of a national awareness-raising programme, as required by Article 10 of the Directive.88 Informed consumers are central to an effective circular economy for plastics and for the success of sustainability measures, such as reducing demand for plastic products, appropriate waste disposal and increased levels of recycling. In the absence of a national awareness-raising programme, the scope for these measures achieving sustainability outcomes is limited.

COUNTRIES MEETING THE REQUIREMENTS OF THE DIRECTIVE Several countries have passed legislation with measures aimed at achieving the standards established in the Directive, without going above or beyond it, including Luxembourg, Latvia and Lithuania.89

COUNTRIES AT THE FOREFRONT OF PLASTICS REGULATIONS Although there is significant room for improvement across Europe in the legislating of the full suite of measures that is faithful to the intention of the Directive, several Member States have set ambitious targets and adopted more comprehensive measures than required. France France is at the forefront of ambitious action against single-use plastics, with regulatory measures to support a circular economy for plastics that go above and beyond the Directive requirements.

Ibid, 24. Ibid. 89 Ibid. 87 88

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Bans The French ban on single-use plastic products was expanded beyond those listed in the Directive to include cups and plastic teabags, as well as single-use plastic packaging for nearly all types of fruits and vegetables. It is estimated that the ban on plastic packaging of fruit and vegetables will prevent more than 1 billion items of unnecessary plastic packaging each year.90 A range of additional measures came into effect as of January 2022, including: • unprocessed fresh fruit and vegetables must be displayed without plastic packaging;91 • crockery used in meal delivery services must be reusable;92 • press publications and advertisements must be sent out without plastic packaging;93 • plastic toys are no longer able to be provided free of charge with menus to children.94 Further, by 2023, all catering establishments, including fast-food restaurants, must provide customers with reusable crockery and cutlery for meals served on site.95 Marking requirements French marking requirements are more extensive than required by the Directive. Plastic products and packaging that can be composted by domestic or industrial composting must have labels instructing that items are not to be disposed of other than by composting.96 Further, plastic products and packaging that is compostable only through industrial composting must not display the terms ‘compostable’, ‘biodegradable’ or ‘environmentally friendly’.97 Any product described as ‘recycled’ must display the percentage of material that is

90 BBC, ‘French Ban on Plastic Packaging for Fruit and Vegetables Begins’, BBC News (31 December 2021) . 91 Loi No 2020-105 du 10 Février 2020, Regarding a Circular Economy and the Fight Against Waste, Journal Officiel de la République Française No 0035 du 11 Février 2020, section 77. 92 Ibid, section 77. 93 Ibid, section 78. 94 Ibid, section 81. 95 Ibid, section 77. 96 Ibid, section 13. 97 Ibid.

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recycled.98 Further, labels affixed directly onto fruits and vegetables must be made of compostable material.99 France has introduced an interesting initiative, the repairability index, to reduce the practice of planned obsolescence and the plastic waste this generates. Planned obsolescence is where producers deliberately shorten a product lifecycle to encourage consumers to buy replacements, thereby generating more waste than is necessary.100 The repairability index requires retailers of smartphones, laptops, televisions, washing machines and lawnmowers to display a product’s score against the following criteria at the point of sale: • • • • •

documentation; disassembly; availability of spare parts; price of spare parts; product-specific aspects.101

The repairability index aims to encourage consumers to choose more repairable products and manufacturers to improve the repairability of their products. A product durability rating, covering the reliability and robustness of a product, is expected to be introduced in 2024.102 Consumption reduction The French law provides for a ban on all single-use plastics by 2040.103 This involves the 100% phasing out of unnecessary single-use plastics, defined as those that do not have an essential function, such as product protection, health and integrity, transport or regulatory information.104 This is the most ambitious target of all EU Member States. To achieve this aim, the law implements several measures, including a 15% decrease in household waste by 2030,105 a 5% decrease in waste from economic activity and a 20% reduction target for plastic packaging, of which at least 50% is to be achieved through the reuse of Ibid. Ibid, section 80. 100 Lieselot Bisschop et al, ‘Designed to break: Planned obsolescence as corporate environmental crime’, Crime, Law and Social Change (March 2022) 2. 101 Loi No 2020-105 (n 90), section 16. 102 International Telecommunication Union, ‘France’s Repairability Index Inches Toward Circular Economy’ 25 October 2021 . 103 Loi No 2020-105 (n 90), section 7. 104 Ministry of Ecological Transition, ‘Circular Economy Action Plan: The Anti-waste Law – What does it do?’, September 2021. 105 Loi No 2020-105 (n 90), section 10. 98 99

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packaging and the progressive elimination of single-use plastic packaging.106 France has also introduced a 50% reduction target for single-use plastic beverage bottles placed on the market by 2030.107 EPR The anti-waste law also strengthens existing EPR schemes and expands the range of products to which EPR schemes apply. Pre-existing EPR schemes relating to household packaging and end-of-life boats, as well as EU mandated schemes on electrical and electronic equipment and end-of-life vehicles, have been strengthened by improved eco-modulation. Eco-modulation involves penalizing the use of environmentally harmful materials whilst rewarding those that are more sustainable.108 As a result of the recent reforms, the eco-contribution will be adjusted in accordance with a system of bonuses and penalties based on environmental performance criteria, including the incorporation of recycled material, durability, repairability, possibilities for reuse or further use and the absence of ecotoxicity. This will improve the sustainability outcomes achieved by EPR schemes. The recent reforms also introduced new EPR schemes for commercial packaging, toys, sports and leisure items, DIY and gardening items, plastic-tipped tobacco products and fishing gear that contains plastics.109 The broadening of products to which EPR schemes apply brings more plastic products into the circular economy, thereby significantly enhancing the scope for reducing plastic waste. Producers of products to which EPR schemes apply are required to develop and implement a five-year prevention and eco-design plan, addressing the following criteria: • waste management obligations; • modulation of eco-contributions based on environmental performance criteria of products; • conditions under which individual systems are set up by producers; • fund for the financing of the repair, further use and reuse of products;

106 Ellen MacArthur Foundation, ‘Global Commitment 2021 Signatory Report: France’, December 2020 . 107 Loi No 2020-105 (n 90), section 66. 108 Emma Watkins et al, ‘EPR in the EU Plastics Strategy and the Circular Economy: A Focus on Plastic Packaging’, Institute for European Environmental Policy, 9 November 2017, 2. 109 Jacques Vernier, ‘Extended Producer Responsibility in France’ 23 November 2021, Field Actions Science Reports, p. 23.

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• conditions for the return of used products by distributors.110 Consumer awareness Producers of products that generate plastic waste in France are required by law to inform consumers about the environmental qualities and characteristics of products, including: • • • • • • • •

the incorporation of recycled material; the use of renewable resources; durability; compostability; repairability; possibilities for reuse; recyclability; presence of dangerous substances, precious metals or earths.111

This comprehensive information will enable consumers to make informed choices about the products they purchase, how they are used and how they are disposed of, strengthening their capacity to support a circular economy for plastics. Design requirements France has implemented the Directive’s design requirements in relation to PET bottles and recycled content, but has also imposed minimum requirements for reused packaging, with a target of 5% by 2023 and 10% by 2027.112 France is the only country in the EU to extend recycled content requirements to plastic packaging. Separate collection France has implemented the targets established in the Directive of 77% of plastic beverage bottles to be collected by 2025, increasing to 90% by 2029.113 Critically, however, there is no deposit-return scheme in France, meaning that separate collection targets are dependent upon EPR schemes. Whilst this technically complies with Article 9, the rate of separate collection in France is poor. In 2015, France collected 56% of PET bottles.114 This is a significant gap Loi No 2020-105 (n 90), section 62. Ibid, section 13. 112 Ibid, section 9. 113 Ibid, art 9. 114 Daniela Coppola, ‘Collection and recycling rate of PET plastics and bottles in selected European countries in 2015’, Statista (10 May 2022) . 110 111

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to bridge to get to a 77% separate collection rate by 2025. Notably, France’s separate collection of PET bottles compares poorly with the rate of separate collection in Member States that have a deposit return scheme (DRS). To illustrate, Germany introduced a DRS scheme in 2003 and has a rate of 88% separate collection of PET bottles.115 Norway, whose DRS has been operating since 1996, has a separate collection rate of 97%,116 and less than 1% of plastic beverage bottles end up in the environment.117 If separate collection targets are not met, France will revisit the option of a DRS,118 however, delays in establishing a DRS will restrict the development of a circular economy for plastics in France. Ongoing low levels of separate collection of plastic bottles means poor levels of recycling, which in turn means more plastics polluting the environment through landfill, incineration or leakage. Awareness-raising Despite significant ambition in implementing most Directive measures, France does not have a national awareness-raising programme, as required by Article 10 of the Directive. There are awareness-raising initiatives, however, these either relate to EPR or are at a local level and are, as such, more limited than a national campaign would be.119 The Directive’s requirement for awareness-raising initiatives reflects the important role of consumers in the success of sustainability measures, such as reducing demand for plastics, improving waste disposal and increasing recycling quotas. The absence of a national awareness-raising programme undermines the scope for initiatives targeting consumption reduction and increasing recycling quotas to achieve significant and sustainable outcomes. This highlights the complementary nature of the measures required to develop a circular economy for plastic. Greece, Ireland and Spain Greece, Ireland and Spain have also introduced strong legislative measures regulating plastics beyond those required by the Directive. Each of these coun115 Danko Kalkan, ‘How the deposit return scheme was introduced in Germany’, Economia (15 December 2020) . 116 Matthew Taylor, ‘Can Norway help us solve the plastic crisis, one bottle at a time?’, The Guardian (12 July 2018) . 117 Ibid. 118 Ellen MacArthur Foundation, ‘Global Commitment 2021 Signatory Report: France’, December 2020, . 119 Loi No 2020-105 (n 90) section 24.

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tries has introduced a ban on the listed single-use plastic products, with Ireland also banning wet wipes, single-use sachets and hotel toiletries and Spain banning plastic rings, plastic sticks for lollies, ice-cream and other products when made of non-compostable plastic, as well as the deliberate release of balloons in public.120 After France, with its target of a total ban of all single-use plastics by 2040, Spain has set the most ambitious consumption reduction targets for food containers and beverage cups in the EU, aiming for 50% by 2026 and 70% by 2030, when compared to 2022 levels.121 It has also introduced taxes on non-reusable plastic packaging and on deposits of waste in landfills, incineration and co-incineration to promote prevention of generation of waste and recycling of plastic waste.122 Spain is also banning plastic packaging on fruit and vegetable under 1.5kg at the beginning of 2023, as France has done.123 As with France, however, Spain does not have a DRS in place. The rate of recycling of plastic beverage bottles in 2020 was 65.7%.124 Achieving the legislated separate collection targets for plastic beverage bottles of 77% by 2025 and 90% by 2029 will be difficult without a DRS. This is recognized in the legislation, which provides for implementation of a DRS to guarantee compliance if interim targets of 70% by 2023 and 85% by 2027 are not met.125 Provision for future implementation of a DRS recognizes the importance that targets are underpinned by policy measures that are capable of achieving them. Delay in implementing a DRS, however, simply contributes to plastic waste and prolongs inefficient use of resources. Ireland’s additional measures include a levy on disposable coffee cups before a full ban on single-use cups enters into force. The Irish government has also flagged introducing levies on other single-use plastic products where there is a reusable alternative that can feasibly be used.126 It is important to assess the state of plastic waste and recycling in Ireland to understand why measures that surpass the Directive are necessary. Ireland produces the most plastic waste packaging in Europe, with an average rate Copello et al (n 66) 52. Law 7/2022 (Spain) art 55. 122 Law 7/2022 (Spain) art 16. 123 Manuel Planelles, ‘Spain to ban sale of fruit and vegetables in plastic wrapping from 2023’, El Pais (22 September 2021) . 124 UNESDA, ‘PET collection rates across Europe’ (2022) . 125 European Union (Single Use Plastics) (No 2) Regulations 2021, S.I No 516 of 2021, (Ireland) art 59(2). 126 BBC, ‘Disposable cup levy to be introduced in Ireland’, BBC (23 July 2022) . 120 121

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of 64.67 kg per person, almost twice the EU average of 34 kg for the same period.127 The plastic problem is compounded by poor levels of plastics recycling, with only 27% of plastic packaging waste recycled in 2019, compared to the EU average of 41% for the same year.128 As a result of high consumption of plastic waste and poor recycling, greenhouse gas emissions from the manufacture of materials associated with single-use products and their production are significant, constituting 45% of Ireland’s greenhouse gas emissions.129 This indicates that significant reform to the plastics economy in Ireland is necessary not only to meet obligations under the Directive, but to wind back the serious environmental consequences of a linear plastics economy. The additional measures implemented by Ireland and Spain highlight further steps that can be taken by other countries within Europe to strengthen the regulation of plastics to reduce their environmental impact. Greece has also introduced several measures above and beyond those required by the Directive and implemented the ban on prohibited single-use plastic items six months ahead of schedule. Retailers are required to provide discounts to consumers who bring their own reusable packaging and restaurants and catering services are not permitted to provide food and beverages in single-use plastic products free of charge with a levy to be paid on all items sold as food or drink packaging.130 Greece has implemented a respectable consumption reduction target for single-use plastic cups and food containers of 30% by 2024 and 60% by 2026, compared to 2022 levels. As with Ireland, the state of plastic consumption, recycling and plastic waste presents a compelling cause for significant reform to plastics regulation in Greece. Greece has a high rate of plastic waste of 68 kg per capita, double 127 Pierre Condamine, ‘Ireland’s plan on single-use and plastic packaging: Waste prevention plan’, Zero Waste Europe (November 2021) . 128 Environmental Protection Agency, ‘More Packaging Waste, Falling Recycling Rates for Plastic and a Heavy Reliance on Export mean that Ireland is Missing Opportunities to Foster a Circular Economy’ (9 September 2021) . 129 Department of the Environment, Climate and Communications, ‘Cabinet Approves Landmark Bill that Will Introduce World-leading Moves to Reduce Waste and Influence Behaviour’ (30 March 2022) . 130 Greek Travel Pages, ‘Greece to ban single-use plastics by 2021’, GTP (5 October 2020) .

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the EU average.131 Only 8% of plastic waste is recycled, with 84% ended up in landfill.132 A total of 11.5 kT of plastic waste leaked into the Mediterranean Sea from Greece in 2016 and 67% of this ended up on Greek coastlines.133 This demonstrates the cause for urgency in Greece’s implementation of measures that aim to support a circular economy for plastics.

CONCLUSION Although Europe may be regarded as being at the forefront of plastics regulation in many respects, the above analysis shows there remains significant room for improvement for individual countries, particularly in relation to fully implementing measures regulating single-use plastics. A review by the European Commission to be undertaken by July 2027 will examine how Member States are progressing with implementation of the Directive and options for strengthening regulatory measures.134 Previous revisions of Directives have shown that inadequate implementation and poor results may lead to stronger measures being adopted. This means that Member States cannot be complacent about the need to strengthen measures to achieve significant sustained results in reducing, reusing and recycling plastic waste. In addition to implementing outstanding measures, countries within the Union may look to the innovative and ambitious measures implemented by France to curb plastic waste. Introducing binding targets for minimum recycled content in plastic packaging, broadening the range of products prohibited from the market and setting higher targets for consumption reduction are among the options for greater plastics regulation in Europe. Broadening the range of items that have quantitative consumption reduction targets, such as wrappers and wet wipes, will also help to strengthen the circular economy for plastics. The repairability index is another innovative mechanism for maximizing product life, thereby minimizing waste, as well as incentivizing the use of renewable resources and improving repairability and recyclability of products.135

131 Wijnand de Wit, Adam Hamilton and Arianna Freschi, ‘Plastic pollution in Greece: How to stop it – A guide for policy-makers’ (World Wide Fund for Nature, 2019), 2. 132 Ibid. 133 Ibid. 134 Directive 2019/904 on the Reduction of the Impact of Certain Plastic Products in the Environment [2019] OJ L 155/1, art 15. 135 Maddie Stone, ‘Why France’s new “repairability index” is a big deal’, Grist (8 February 2021) .

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Meanwhile, there is an opportunity at the European Commission level for improved regulation of plastics through a revision of the Waste Framework Directive which is currently under way, with amendments to be adopted in 2023.136 The purpose of the revision is to improve waste management in Europe by reducing waste generation through the reuse of products, reducing mixed waste and increase preparation for reuse or recycling by improving separate collection.137 There are several policy options for strengthening plastics regulation in Europe within this revision: • introducing binding waste reduction targets for specific waste streams, such as plastic packaging; • defining re-use targets for waste electrical and electronic equipment and packaging separately to recycling, as reuse is a more efficient use of resources; • improving eco-modulation and aligning of EPR schemes with the waste hierarchy by targeting the levels above recycling, such as reusability, durability and repairability. The emphasis on recycling in setting targets and EPR schemes serves a purpose in the circular economy. There are, however, more resource efficient stages in the lifecycle of a product that ought to be targeted in addition to recycling. For example, as prevention is the most efficient way to improve resource efficiency, binding waste reduction targets should be a priority for regulatory reform and should be imposed supplementary to recycling targets.138 Defining re-use targets for waste electrical and electronic equipment and plastic packaging, as distinct from recycling targets, would further affirm the waste hierarchy as reuse avoids new packaging being placed on the market.139 France, for example, has implemented a requirement that 5% of packaging on the market must be reused packaging, increasing to 10% by 2027.140 This is in addition to the target of recycling 100% of plastics by 2025. All in all, the example of the European Union as we have also argued above (see the heading “How EU environmental law’s (problematic) architecture

136 Smart Waste, Interreg Europe, ‘Revising the Waste Framework Directive’, European Union European Regional Development Fund (21 March 2022) . 137 Ibid. 138 European Environmental Bureau, ‘Environmental Impact of Waste Management – Revision of the Waste Framework Directive’ (22 February 2022) . 139 Ibid. 140 Loi No 2020-105 (n 90), section 9.

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impacts (badly) on EU ‘plastics law’”) is one of “incremental” adoption of laws with increasingly stringent requirements. Even when properly implemented however they arguably do not add up to the kind of systemic approach to production and consumption in general, and that of plastics in particular, which is required to address the substantive excesses of the Anthropocene of which plastics pollution is only one, if a potent, example.

PART III

Global context of plastic usage and pollution

6. Current international law and plastic INTRODUCTION Acceptance of plastic as a product has come with a price which is also being paid outside of nation-state borders. Plastic pollution has become both omnipresent in that as scientists have noted “plastic is literally everywhere”, from the atmosphere to the Mariana Trench.1 Plastics clog our waterways, foul the land and are even to be found in micro-form in the air we breathe. However, as Carlini and Kleine observe, compared to “other fields of environmental regulations, what is particularly notable is the complete lack of binding targets for plastic pollution reduction and compulsory timelines,” at the global level limiting their effectiveness.2 The majority of the regulatory action to date has focused on the marine environment on the high seas but the issue of whether plastic should be considered a ‘hazardous waste” under the Basel Convention on Hazardous Waste (1992)3 and its treatment as a persistent organic pollutant (POP) under the Stockholm Convention on Persistent Organic Pollutants (2004)4 has recently also become one of concern for the global community. Before a critical examination of the current international regulatory practices pertaining to plastic waste can be undertaken, it is important to understand the scale of the problem. We can observe that there are a variety of mechanisms by which plastic enters high seas marine ecosystems, including terrestrial runoff,

1 Joanna Khan, ‘Plastic pollution: can the ocean really be cleaned up?’, The Guardian (22 March 2019). 2 Giulia Carlini and Konstantin Kleine, ‘Advancing the international regulation of plastic pollution beyond the United Nations Environment Assembly resolution on marine litter and microplastics’ (2018) 27(3) Review of European, Comparative & International Environmental Law 236 (Carlini and Kleine, ‘Advancing the international regulation’). 3 Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal (adopted 22 March 1989, entered into force 5 May 1992) 1673 UNTS. 4 Stockholm Convention on Persistent Organic Pollutants, opened for signature 22 May 2001, 2256 UNTS 119 (entered into force 17 May 2004).

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atmospheric transport, and rivers that connect aquatic and marine ecosystems.5 Consequently, plastic can be found in all oceans including coastlines, the sea surface, sea ice, and the deep-sea floor.6 In 2010, it was estimated between 4.8 and 12.7 million tonnes of plastic waste found its way into the ocean and it is predicted that this number could increase by a factor of ten by 2025.7 In the oceans, macroplastic is currently the most visible manifestation of the problem with photos of “plastic islands” of waste in the Pacific Ocean appearing regularly in the media.8 The Sustainable Development Goal 14 of the UN’s 2030 Agenda for Sustainable Development9 similarly seeks to stimulate state action around “[conservation] and sustainable use [of] the oceans, seas and marine resources”. Target 14.1 of the Sustainable Development Goals (by 2025, seeks to prevent and significantly reduce marine pollution10 of all kinds, especially from land-based activities, including marine debris and nutrient pollution) and in other ocean-related goals.11 On 23 December 2015, the United Nations General Assembly adopted resolution 70/235 on “Oceans and the law of the sea,” in which it introduced the First Global Integrated Marine Assessment and approved its summary.12 The findings of the assessment indicate that the oceans’ carrying capacity is near or at its limit. Urgent action on a global scale is needed to protect the world’s oceans from the many pressures they face.13 In particular, the assessment highlighted the dangers posed by marine plastic debris, stressing the importance of further research on the effects of microplas-

5 Frederic M Windsor et al, ‘A Catchment-Scale Perspective of Plastic Pollution’ (2019) 25(4) Global Change Biology 1207, 1210. See also chapter 1. 6 R Jambeck et al, ‘Plastic Waste Inputs from Land into the Ocean’ (2015) 347(6223) Science (American Association for the Advancement of Science) 768, 768. 7 Ibid, 770. 8 See . 9 UNGA, ‘Transforming Our World: The 2030 Agenda for Sustainable Development’ UN Doc A/RES/70/1 (25 September 2015). 10 The UN defines marine litter as “any persistent, manufactured or processed solid material discarded, disposed of or abandoned in the marine coastal environment”. Joanna Vince and Britta D Hardesty, ‘Governance Solutions to the Tragedy of the Commons That Marine Plastics Have Become’ (2018) 5(214) Frontiers in Marine Science 8 (Vince and Hardesty, ‘Governance Solutions’). 11 UNEP/EA.2/19, United Nations Environment Assembly of the UNEP, Second Session (Nairobi, 23–27 May 2016), 85. 12 General Assembly of the United Nations, Summary of the first global integrated marine assessment (Seventieth session, Item 80 (a) of the provisional agenda Oceans and the law of the sea) A/70/112. 13 United Nations, Division for Ocean Affairs and the Law of the Sea, First World Ocean Assessment (WOA I).

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tics and nanoplastics, as the new emerging threat to the health of the marine ecosystems.14 While the issue of marine plastic pollution has attracted significant media attention and inter-state action in recent years, it has yet to generate sufficient action to fully address the issue.15 Global governance of plastic as currently configured: “is fragmented across [national and local] jurisdictions, sectors, and product lines”16 and “[t]here is little policy coordination across states, with international functioning as little more than dialogue forums.”17 Global plastic exports are valued over US$1 trillion (US$1,008 billion), involving 335 million metric tonnes of plastic.18 The highest valued subset Ibid, 135–137. Carlini and Kleine, ‘Advancing the international regulation’. 16 Peter Dauvergne, ‘Why is the global governance of plastic failing the oceans?’ (2018) 51 Global Environmental Change 22 (Dauvergne, ‘Why is global governance of plastic failing?’). 17 Ibid. 18 Notably, global plastic production in 2019 was 460 million tonnes. OECD, ‘Plastic pollution is growing relentlessly as waste management and recycling fall short, says OECD’, Environment (Web Page, 2022) . The United Nations Conference on Trade and Development produced a report in December 2020, Global trade in plastics: insights from the first life-cycle trade database (UNCAT/SER​ .RP/​ 2020/​ 12), that “[quantifies] and [maps] global trade flows across the entire life cycle of plastics”. A key finding of this report is the breakdown of total plastics trade volume into different plastic types: Primary forms of plastic, which comprise 56% of plastic volume in total global trade (196 million metric tonnes, valued at US$348 billion); Intermediate forms of plastic, which comprise 11% of plastic volume in total global trade (valued at US$158 billion, at 39 million metric tonnes); Intermediate manufactured plastic goods, which comprise 5% of plastic volume in total global trade (valued at US$83 billion, at 18 million metric tonnes); Final manufactured plastic goods, which comprise 21% of plastic volume in total global trade (valued at US$416 billion, 74 million metric tonnes); and Plastic waste, which comprises 2% of plastic volume in total global trade (valued at US$3 billion, at 8 million metric tonnes): UNCTAD, Research, 14–15. Note that in 2019, 6 million tonnes of plastic waste was traded, and in 2020, 5 million tonnes was traded: Hannah Ritchie, ‘Ocean plastics: How much do rich countries contribute by shipping their waste overseas?’ Our World in Data (Web Page, 2022) . There are various scholars supporting the same empirical data on the present volume of global plastic traded exports. Ronen Galaiduk et al, ‘Transnational Plastics: An Australia Case for Global Action’ (2020) Frontier Environmental Science (Galaiduk et al, ‘Transnational Plastics’). See generally Atiq Zaman and Peter Newman, ‘Plastics: are they part of the zero-waste agenda or the toxic-waste agenda?’ (2021) 4 Sustainable Earth 1–3 . See generally The National Academics of 14 15

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of global plastics trade is the export of manufactured final plastics goods (US$416 billion). The highest in weight, however, is the export of primary forms of plastic (196 million metric tonnes). Export data on “plastic-related products”, such as feedstocks and precursors (valued at US$94 billion, at 100 million metric tonnes) and additives (US$81 billion, at 55 million metric tonnes). However, it should be noted that the amount of plastic currently subject to Basel regulations, is estimated at only 8 million metric tonnes.19 The global trade in plastic is also partly regulated under the Stockholm Convention, based on the presence of POPs – “known for their toxicity ... and bioaccumulation” – in not only plastic waste, but design.20 While Basel indeed applies to regulate plastic as a waste product,21 Stockholm promotes the “role of manufacturers” in “reducing the effects of their products at all stages”. As such, its provisions can be said to apply not only to regulate plastic in waste form (cf. Basel), but also in, “influencing the design phase” by restricting use of POPs in manufacturing of plastic products.22 This is directly consistent with the Preamble emphasis on the: “importance of manufacturers ... responsibility for reducing adverse effects caused by their products”, which can be read to apply to design stages.23 On this basis, the breadth of Stockholm’s scope to include plastic manufacture means that technically, its provisions can be applied to those “manufactured” plastic goods in global trade. Raubenheimer’s argues that “[s]ome POPs listed in Annex X of [Stockholm] may be used in the manufacture of plastics.”24 This is consistent with Chakraorty et al’s contention that, “[i]ndustrial waste” – while a “nebulous term” – “includes waste generated from ... large manufacturing ... plants”, who are major users of “POPs or POPs precursors.”25 Science, Engineering and Medicine, Reckoning with the U.S. Role in Global Ocean Plastic Waste (The National, Reckoning). 19 UNCTAD, Research, 14–15. 20 Karen Raubenheimer and Alistair McIlgorm, ‘Can the Basel and Stockholm Conventions provide a global framework to reduce the impact of plastic litter?’ (2018) 96 Marine Policy 1 (Raubenheimer and McIlgorm, ‘Can the Basel and Stockholm Conventions provide a global framework?’) 6. 21 The Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal. 22 Raubenheimer and McIlgorm, ‘Can the Basel and Stockholm Conventions provide a global framework?’, 6. 23 Stockholm Convention on Persistent Organic Pollutants, Stockholm– Sweden, opened for signature 22 May 2001 (entered into force 17 May 2004), Preamble. 24 Raubenheimer and McIlgorm, ‘Can the Basel and Stockholm Conventions provide a global framework?’, 6. 25 See Paromita Chakraborty et al, ‘Interlinkage Between Persistent Organic Pollutants and Plastic in the Waste Management System of India: An Overview’ (2022)

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This chapter critically examines the current global law and responses to the issues of marine and international transboundary plastic pollution asking whether the current ‘ramshackle’ structure can effectively deal with the issue. At present, marine plastic pollution is not addressed under a single legally binding international instrument, but rather is a byproduct of other instruments including: • The Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (targets pollution from vessels only) (London Convention);26 • The International Convention for the Prevention of Pollution from Ships (MARPOL),27 regulates all types of pollution from vessels (also applies to fixed and floating drilling rigs when in operation).28 • The United Nations Convention on the Law of the Sea (UNCLOS)29 (plastic pollution could fall under wither article 194 or 207, but both provisions are very limited in their application).30

1 Bulletin of Environmental Contamination and Toxicology . 26 Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, opened for signature 29 December 1972, 1046 UNTS 120 (entered into force 30 August 1975) (London Convention). 27 (adopted 2 November 1973, entered into force, as modified by the Protocol of 1978, 2 October 1983) 1340 UNTS 184 (MARPOL). 28 MARPOL, Annex 1, reg 21. 29 (adopted 10 December 1982, entered into force 16 November 1994) 1833 UNTS 3. 30 Article 194 of the UNCLOS obliges Member States to take measures to prevent, reduce and control pollution of the marine environment. Article 194.1 specifies that: “States shall take, individually or jointly as appropriate, all measures consistent with this Convention that are necessary to prevent, reduce and control pollution of the marine environment from any source, using for this purpose the best practicable means at their disposal and in accordance with their capabilities, and they shall endeavour to harmonize their policies in this connection.” Article 194.3 simply clarifies that: “The measures taken pursuant to this Part shall deal with all sources of pollution of the marine environment. These measures shall include, inter alia, those designed to minimize to the fullest possible extent: (a) the release of toxic, harmful or noxious substances, especially those which are persistent, from land-based sources, from or through the atmosphere or by dumping;” Article 207 of the UNCLOS requires states to take measures to prevent, reduce and control pollution from land‐based sources. The reach of this provision is limited by the reference to vague and broad ‘internationally agreed rules, standards and recommended practices and procedures.’: See Carlini and Kleine, ‘Advancing the international regulation’, 236.

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The chapter then focuses on international instruments that have (or can have) a bearing on plastic pollution regulation. They include the Basel Convention on Hazardous Waste and the Stockholm Convention on POPs. It then reviews the “soft law”31 campaigns, strategies and Action Plans that the international community has created that either deal with plastic pollution or have a tangential interest in the issue. An examination of all such approaches is beyond the scope of this inquiry but it focuses on the key ones, including the Global Program of Action for the Protection of the Marine Environment from Land Based Activities; the Honolulu Strategy; the Clean Seas Campaign; the G20 Osaka Blue Ocean Vision and its Action Plan on Marine Litter; and the Oceans Plastic Charter. Lastly, it queries whether the current patchwork international regulatory approach to the issue of plastic pollution is appropriate or whether a global plastic convention should be crafted.

MARINE POLLUTION REGULATION As noted earlier, current regulatory approaches to marine plastic pollution (from sea- and land-based sources) are considered inchoate and uncoordinated, with plastic related measures merely “weakly distributed” across various international instruments without a central regime focusing on the issue.32 There have been international efforts such as the Marine Debris Program, jointly run by the United Nations Environment Programme (UNEP) and the U.S. National Oceanic and Atmospheric Administration (NOAA),33 and the Honolulu Strategy (see later), which is a, “framework for a comprehensive and global effort to reduce the ecological, human health, and economic impacts

31 Soft law here is defined as: “combinations of reduced precision, less stringer obligation, and weaker delegation” of non-binding international legal rules. Kenneth W Abbott and Duncan Snidal, ‘Hard and Soft Law in International Governance’ (2000) 54(3) International Organization 421, 421–424. 32 United Nations Environment Assembly of the United Nations Environment Programme, Combatting marine plastic litter and microplastics: An assessment of the effectiveness of relevant international and regional governance strategies and approaches, UN Doc UNEP/EA.3/INF/5 (15 February 2018) 10 (UNEP Assessment– Combatting marine litter). 33 ‘International Marine Debris Collaboration’ NOAA Marine Debris Program (Web Page) https://​marinedebris​.noaa​.gov/​current​-efforts/​international​-marine​-debris​ -collaboration>; Balraj K Sidhu and Bharat H Desai, ‘Plastics Pollution: A New Common Concern of Humankind?’ (2018) 48(5) Environmental Policy and Law 252, 252 (Sidhu and Desai, ‘Plastics Pollution’).

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of marine debris.”34 However, the regulatory architecture has tended to be a patchwork of existing treaties and protocols.

THE LONDON CONVENTION AND MARPOL A number of binding international instruments regulate vessel-source pollution. MARPOL (Annex V)35 and the London Convention36 and its Protocol,37 seek to limit marine plastic pollution from sea-based sources. Their focus is primarily on preventing pollution from large ships and the intentional dumping of waste at sea. The 1972 Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (London Convention), attempted to regulate marine pollution by prohibiting the dumping of any wastes or other matter in whatever form or condition listed in Annex I.38 One of the first global conventions to protect the marine environment from human activities, it has been in force since 1975. Its objective is to promote the effective control of all sources of marine pollution and to take all practicable steps to prevent pollution of the sea by dumping of wastes and other matter. Currently, 87 states are parties to this Convention.39 In 1996, parties to the London Convention adopted a Protocol to the London Convention (known as the London Protocol) which entered into force in 2006. The Protocol should in time, replace the original London Convention. It utilizes an interesting and fresh approach to the question of how to regulate the use of the sea as a depository for waste materials. Article 4.1 of the Protocol states that contracting parties “shall prohibit the dumping of any wastes or other matter with the exception of those listed in Annex I.”40 For items listed in Annex 1 dumping is allowed only if a permit is obtained.41 In other words, rather than stating which materials shall not be dumped, it prohibits all dumping, except for possibly acceptable wastes on the so-called

34 UNEP and NOAA, The Honolulu Strategy: A global framework for prevention and management of marine debris, ES-1; Sidhu and Desai, ‘Plastics Pollution’. 35 MARPOL. 36 Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter. 37 Protocol to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (adopted 17 November 1996, entered into force 24 March 2006) 36 ILM 1 (London Protocol). 38 London Convention, art IV. 39 London Convention. 40 London Protocol, art 4.1. 41 Ibid, art 4.2

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“reverse list”, contained in an Annex I to the Protocol.42 The list of the Annex is short, with only eight categories being present and plastic materials or items of any kind are not expressly included in it.43 A priori, it means that no plastic should be dumped. However, items permitted for dumping under category 4, such as vessels and platforms, may have plastic components, which in time can degrade into smaller fragments and contribute to the pollution. Moreover, the seventh category on the Annex list: “bulky items primarily comprising iron, steel, concrete and similar unharmful materials for which the concern is physical impact and limited to those circumstances, where such wastes are generated at locations, such as small islands with isolated communities, having no practicable access to disposal options other than dumping” is ambiguous. It is unclear whether “unharmful materials” can include plastic and the definition suggests that it can.44 MARPOL and its six annexes regulate all types of pollution from vessels. It established that certain wastes fall within the scope of the treaty and determines the appropriate way such waste should be disposed of on the high seas.45 After a major revision of 2011, plastics is now covered by Annex V.46 That Annex regulates the prevention of garbage discharge by all vessel types, extending to “all kinds of victual, domestic and operational waste” including plastic.47 42 International Maritime Organization (IMO), Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter . 43 The permitted substances are: 1. Dredged material 2. Sewage sludge 3. Fish waste, or material resulting from industrial fish processing operations 4. Vessels and platforms or other man-made structures at sea 5. Inert, inorganic geological material 6. Organic material of natural origin 7. Bulky items primarily comprising iron, steel, concrete and similar unharmful materials for which the concern is physical impact and limited to those circumstances, where such wastes are generated at locations, such as small islands with isolated communities, having no practicable access to disposal options other than dumping 8. CO2 streams from CO2 capture processes. 44 Galaiduk et al, ‘Transnational Plastics’, 6. 45 MARPOL, Annex V. 46 IMO, The Marine Environment Protection Committee, Resolution MEPC.201(62), adopted 15 July 2011, Amendments to the Annex of the Protocol of 1978 relating to the International Convention for the Prevention of Pollution from Ships 1973 (Revised MARPOL Annex V) . 47 MARPOL, Annex V, reg 1(1).

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Regulation 3 of Annex V generally prohibits the discharge of all garbage into the sea, except as provided otherwise in regulations 4, 5, and 6 of the Annex.48 Garbage now includes all plastics and plastics are defined as a “solid material which contains as an essential ingredient one or more high molecular mass polymers and which is formed (shaped) during either manufacture of the polymer or the fabrication into a finished product by heat and/or pressure”.49 For the purposes of this Annex “all plastics” means all garbage which consists of or includes plastic in any form, including synthetic ropes, nets, plastic garbage bags and incinerator ash from plastic products.50 Vessels are now expected to dispose of their waste at land based wasted facilities.51 Each party to the Annex should ensure that adequate facilities for the reception of garbage are provided at ports and terminals.52 The items permitted for discharge under regulations 4–6 are related to food waste, some cargo residues, cleaning agents and additives and animal carcasses (providing the conditions for their discharge are satisfied).53 Moreover, discharge of prohibited items is permitted if it is accidental or necessary for the purposes of safety.54 Another important amendment to MARPOL’s Annex V introduced in 2016 relates to cargo residues. Cargo residues are defined as: “the remnants of any cargo … which remain on the deck or in holds following loading and unloading … whether in wet or dry conditions or entrained in wash waters.”55 It is permitted to discharge cargo residue under certain conditions, one being that it does not include any substances classified as harmful to the marine environment.56 The 2016 amendment, which entered into force in 2018 provides an Appendix of Criteria for the classification of solid bulk cargoes as harmful to the marine environment. The last category of the criteria includes cargoes containing or consisting of synthetic polymers, rubber, plastics, or plastic feedstock pellets (this includes materials that are shredded, milled, chopped or

48 MARPOL, Annex V, reg 3. See also International Maritime Organization, ‘Simplified overview of the discharge provisions of the revised MARPOL Annex V which entered into force on 1 March 2018’ . 49 Revised MARPOL Annex V, regs 9 and 13. 50 Ibid, reg 13. 51 Vince and Hardesty, ‘Governance Solutions’, 2. 52 MARPOL, Annex V, reg 8. 53 Ibid, regulations 4, 5 and 6. 54 Ibid, reg 7. 55 Ibid, reg 1.2. 56 For example, MARPOL, Annex V, reg 4.1.3 and reg 6.1.2

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macerated or similar materials).57 Essentially, cargo residue of such nature is no longer permitted for discharge under Annex V.58 Moreover, Annex V also mandates ships to provide official records of disposals and incinerations (Garbage Record Book) for ships with capacities of 400 gross tonnages and over as well as every ship certified to carry 15 people or more onboard. The record book, whether as a part of the ship’s official log-book or separate, is to be in the form specified in MARPOL Annex V.59 Annex V also prescribes that in the event of any discharge for the purposes of safety or accidental loss of garbage as per regulation 7 an entry shall be made in the Garbage Record Book (or if the ship is of less than 400 gross tonnage, an entry shall be made in the ship’s official log-book). This entry should contain all the details of the event, including the date and time of occurrence, port or position of the ship at time of occurrence, the reason for the discharge or loss, details of the items discharged or lost, and reasonable precautions taken to prevent or minimize such discharge or accidental loss and general remarks. Finally, Annex V applies to all ships, which means all ships of any type whatsoever operating in the marine environment, from merchant ships to fixed or floating platforms to non-commercial ships like pleasure crafts and yachts.60 Even though the Annex is optional,61 currently 154 states are parties to MARPOL’s Annex V covering 98.56% of the world’s shipping tonnage.62 57 MARPOL, Annex V, Appendix I. See, IMO, The Marine Environment Protection Committee, Annex 2, RESOLUTION MEPC.277(70) (Adopted on 28 October 2016) Amendments to the Annex of the International Convention for the Prevention of Pollution from Ships, 1973, as Modified by the Protocol of 1978 Relating Thereto, Amendments to MARPOL Annex V, HME Substances and Form of Garbage Record Book . 58 In practice, of course, it is not normally practicable for shipowners and masters to carry out their own testing of cargoes, and they will frequently have to rely on information from shippers and charterers as to whether the goods loaded contain any substances that are Harmful to the Marine Environment (HME). 59 MARPOL, Annex V, reg 10.3.6. This is one of the most recent amendments to the Annex V. See, IMO, The Marine Environment Protection Committee, Annex 2, RESOLUTION MEPC.277(70) (Adopted on 28 October 2016) Amendments to the Annex of the International Convention for the Prevention of Pollution from Ships, 1973, as Modified by the Protocol of 1978 Relating Thereto, Amendments to MARPOL Annex V, HME Substances and Form of Garbage Record Book . 60 MARPOL, Annex V, reg 2. See also IMO, Prevention of Pollution by Garbage from Ships: Background of MARPOL Annex V . 61 See MARPOL, art 14(1). 62 ‘Status of Treaties’, International Maritime Organisation (Web Page) .

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While MARPOL is considered relatively successful, it has several serious limitations outlined below. Vessel-source pollution, which is targeted by MARPOL’s Annex V, is representative of only a small part of total plastic pollution. MARPOL as currently configured is limited to sea-sourced marine plastic pollution, with no scope to consider land-sourced waste.63 Approximately 80% of the plastics entering the ocean is from land-based sources.64 While MARPOL can be said to be attempting to deal with the issue, particularly initially,65 it is clear it has not tackled the “root problem”, that of land-based plastic pollution entering the marine environment, given that oceanic plastic waste quanta continues to rise.66 Also, compliance with MARPOL’s edicts remains an issue.67 Ninaber correctly acknowledges that Annex V is the major international authority for ship-discharged marine debris but highlights in its current soft law configuration it has limited enforcement applicability. Ocean based waste conventions that aim to prohibit the disposal of oceanic plastic waste into the ocean, as currently configured, lack tracking systems or have inadequate tracking systems to discover and punish offenders. Thus, often such miscreants are only identified if witnessed dumping their waste.68 The system also relies on self-reporting of data allowing ship’s captains to not accurately report the quantity of waste disposed of at incineration and port facility sites.69 Although Annex V, seeking to prevent vessels from distorting data, does not allow captains to review their reported figures in the GRB, it does not prevent ships maintaining an external ledger containing the distorted data.70 63 Stephanie Borrelle and Chelsea Rochman, ‘Why we need an international agreement on marine plastic pollution’ (2017) 114(38) Biological Sciences 9994. 64 Hannah Ritchie, ‘Which countries and rivers emit the most plastic to the ocean? What does this mean for solutions to tackle plastic pollution?’ Our World in Data, 1 May 2021 . 65 Oliver Tickell, ‘International Law and Marine Plastic Pollution – Holding Offenders Accountable’ (Report, Artists Project Earth, February 2018) 10. 66 Stephanie B Borelle et al, ‘Opinion: Why we need an international agreement on marine plastic pollution’ (2017) 114(18) Proceedings of the National Academy of Sciences of the United States of America 9994 . 67 Vince and Hardesty, ‘Governance Solutions’. 68 Mark Gold et al, ‘Stemming the Tide of Plastic Litter: A Global Action Agenda’ (2014) 27(2) Tulane Environmental Law Journal 185 (Gold et al, ‘Stemming the Tide’). 69 Ibid. 70 Arie Trouwborst, ‘Managing Marine Litter: Exploring the Evolving Role of International and European Law in Confronting a Persistent Environmental Problem’ (2011) 27(73) Utrecht Journal of International and European Law 4, 10.

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Further, MARPOL contains exemptions and opt-out provisions that undercut its objectives. Annex V for example, does not penalize ships that accidentally lose fishing gear.71 Discarded fishing gear is estimated to be approximately 10% (100 million pounds) of all ocean plastics72 while Kass argues fishing vessels in Europe have contributed 27% of marine litter in European waters.73 It also does not define “accidental loss” nor does it stipulate what precautions ships should take to prevent such losses.74 Penalties imposed under Annex V are currently insufficient to deter unlawful behaviour.75 If a ship is determined to have breached MARPOL, either by non-compliance or irregularity, penalties are imposed by that vessel’s home state.76 Such penalties can be mere warnings or fines that have averaged only US$6,200 per case. For example, in the U.S. since 1995, only 10% of such cases involved courts imposing penalties on the offending parties.77 Finally, the effectiveness of ships to comply with the discharge requirements of MARPOL depends largely upon the availability of adequate port reception facilities. The inadequacy of port reception facilities is recognized as a major hurdle to overcome in order to achieve full compliance with MARPOL.78 There is also lack of coordination as port users and the providers of port reception facilities face difficulties since waste classification, set out in MARPOL is not always equivalent to the categories of waste legislation on land.79 It often leads to inadequate waste management. For example, waste reception and han-

Gold et al, ‘Stemming the Tide’, 182. The Nature Conservancy, ‘NEW RESEARCH: Fishing Gear Accounts for an Alarming Amount of Plastic Pollution in Oceans’ The Nature Conservancy (online, 16 September 2021). 73 Madeline June Kass, ‘Fishing for Plastic: EU Targets Marine Pollution’ (2019) 34(1) Natural Resources & Environment 58, 58. 74 International Convention for the Prevention of Pollution from Ships, 1973 as modified by the Protocol of 1978, opened for signature 17 February 1973, 1340 UNTS 61 (entered into force 2 October 1983) reg 6(c); Gold et al, ‘Stemming the Tide’, 188. 75 Ibid, 184. 76 MARPOL, art 4(4). 77 Gold et al, ‘Stemming the Tide’, 184. 78 IMO, Reception facilities . In order to encourage the state to improve their port reception facilities the IMO has released Consolidated Guidance for Port Reception Facility. See IMO, Marine Environment Protection Committee, Consolidated Guidance for Port Reception Facility Providers and Users (MEPC.1/Circ.834/Rev.1) 1 March 2018 . 79 Gabriela Argüello, ‘Environmentally Sound Management of Ship Wastes: Challenges and Opportunities for European Ports’ (2020) 5(12) Journal of Shipping and Trade 1. 71 72

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dling plans in several ports of the EU focus primarily on the disposal of waste, even for waste types that could easily be recycled.80 In other words, the plastic waste from ships, even where it can be recycled, is disposed of on a landfill or incinerated. There is a need for the integration of port reception facilities within the broader context of waste management and circular economy. Unfortunately, regional instruments such as the Convention for the Protection of the Marine Environment and Coastal Areas of the South-East Pacific (Lima Convention) and The Convention for the Protection of the Marine Environment and the Coastal Region of the Mediterranean (Barcelona Convention) that aim to prohibit both the disposal of plastics from ocean-based and land-based sources have attracted only limited support to date.81 Overall, international environmental law instruments such as MARPOL, UNCLOS and the London Convention have proven limited in that they only address the end of life disposal of plastics.82 They do not address other phases of the plastic’s lifecycle such as the, “extraction of raw materials, design and use phases of plastic polymers and additives.”83 MARPOL’s and the London Convention’s focus on the end of life phase is further limited because they do not address the prevention of land-based sources which constitute the bulk of maritime plastic pollution.84 Their effectiveness is also curtailed because (besides from the Global Program of Action for the Protection of the Marine Environment from Land-Based Activities

Ibid. Convention for the Protection of the Marine Environment and Coastal Area of the South-East Pacific, opened for signature 12 November 1981, TRE-000741 (entered into force 19 May 1986); Convention for the Protection of the Mediterranean Sea against Pollution, opened for signature 16 February 1976, TRE-000543 (entered into force 12 February 1978). This chapter is not going to analyse Regional Seas Conventions as the mandate of the Regional Seas is mostly limited to the relevant convention areas, with only five regions including the high seas in the duty to prevent harm. Not all states are party to a binding Regional Seas convention, leaving geographic gaps in the duty to protect the marine environment, particularly from land-based sources. See United Nations Environment Assembly of the United Nations Environment Programme, Third session Nairobi, 4–6 December 2017, Combating marine plastic litter and microplastics: An assessment of the effectiveness of relevant international, regional and subregional governance strategies and approaches (UNEP/EA.3/INF/5), 149. 82 Ibid. 83 Nils Simon et al, No More Plastics in the Ocean: Gaps in Global Plastic Governance and Options for a Legally Binding Agreement to Eliminate Marine Plastic Pollution (Adelphi, 2018) (Simon et al, No More Plastics in the Ocean) 29. 84 Leila Monroe, ‘Tailoring Product Stewardship and Extended Producer Responsibility to Prevent Marine Plastic Pollution’ (2014) 27(2) Tulane Environmental Law Journal 219 (Monroe, ‘Tailoring Product Stewardship’) 220. 80 81

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(GPA), these treaties do not address how the “connectivity between terrestrial, freshwater, coastal and marine ecosystems” that could “prevent, reduce, control and/or eliminate marine degradation from land-based sources” could be improved.85

THE UNITED NATIONS LAW OF THE SEA CONVENTION (UNCLOS) In 1956 the International Law Commission submitted to the UNGA a set of draft articles on the Law of the Sea.86 They were then broken up into four separate draft treaties on the issues of territorial seas and contiguous zones, the continental shelf, the high seas and fishing. Treaty negotiations took place in 1958 in Geneva (the first United Nations conference on the law of the sea (UNCLOS I) eventually delivering four final conventions (the 1958 Geneva Conventions).87 The United Nations Convention on the Law of the Sea was created at the third United Nations Conference on the Law of the Sea (1973–1982). The treaty lays down a comprehensive regime of law and order in the world’s oceans and seas establishing rules governing all uses of the oceans and their resources. It enshrines the notion that all problems of ocean space are closely interrelated and need to be addressed. The Convention was opened for signature on 10 December 1982 in Montego Bay, Jamaica.88 The text ran to more than 300 Articles, nine Annexes, two Resolutions and two implementation agreements. For proponents, it was hailed as an achievement of staggering legal accomplishment designed as a “constitution for the oceans” with an answer to almost every question focused on ocean management.89 However, as can be seen UNCLOS has not yet managed to deal with

85 Goncalves and Faure, ‘International Law Instruments’; United Nations Convention on the Law of the Sea, opened for signature 4 June 1992, 1833 UNTS 396 (entered into force 16 November 1994), art 207(4). 86 Yearbook of the International Law Commission (1956) Volume II, UN Doc A/ CN.4/SER.A/1956/Add.1, 1–103. 87 Convention on the Territorial Sea and the Contiguous Zone 1958, 516 UNTS 205; Convention on the Continental Shelf 1958, 499 UNTS 311; Convention on the High Seas 1958, 450 UNTS 11; Convention on Fishing and Conservation of Living Resources of the High Seas 1958, 559 UNTS 285. 88 See . 89 See: Robin R Churchill, ‘The 1982 United Nations Convention on the Law of the Sea’ in Donald R Rothwell, Alex G Oude Elferink, Karen N Scott and Tim Stephens (eds), The Oxford Handbook of the Law of the Sea (OUP, 2015) 24–45, 27.

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the thorny question of how to prevent and ameliorate ongoing marine plastic pollution.90 At its core, the treaty is designed to put in place a governing regime of the world’s oceans.91 It sets out the rights and responsibilities of member nations utilizing the world’s oceans while also establishing guidelines and obligations for governments and businesses on how oceanic natural resources and their marine environment should be managed. The UNCLOS treaty is currently the most authoritative attempt at regulating global marine pollution, with a wide mandate covering virtually all ocean and sea activities.92 In addition to the general obligation to protect and preserve the marine environment,93 it includes the obligation to take all measures necessary to prevent, reduce and control pollution of the marine environment from any source, including from land-based sources, from vessels and by dumping.94 While UNCLOS does not specifically refer to plastic pollution, its remit does indirectly apply to the issue and is therefore potentially applicable to plastic pollution. Particularly since it is the only global instrument that additionally regulates land-sourced pollution.95 A closer examination of Part XII of UNCLOS which covers Protection and Preservation of the Marine Environment reveals several sections that both do, and potentially could aid in resolving marine plastic pollution by prohibiting pollution of the marine

90 However, UNCLOS did put in place a number of important changes to the then existing oceanic legal framework. As Harris highlights: “[these] main changes or additions are the acceptance of a 12-mile territorial sea; provision for transit passage through international straits; increased rights for archipelagic and landlocked states; stricter control of marine pollution; further provision for fisheries conservation; acceptance of a 200-mile exclusive economic zone for coastal states; changes in the continental shelf regime; and provision for the development of deep sea-bed mineral resources.” David John Harris, Cases and Materials on International Law (7th edn, Sweet & Maxwell, 2010), 322. 91 Ngyuyen van Truong and Chu Beiping, ‘Plastic marine debris: sources, impacts and management’ (2019) 76 International Journal of Environmental Studies 953, 962. 92 UNCLOS opened for signature 10 December 1982, 1833 UNTS 3 (entered into force 16 November 1994). 93 Ibid, art 192. 94 Ibid, arts 194, 207, 210, 211. 95 Many regional seas conventions also regulate land-based pollution, see for example OSPAR’s The Action Plan for Marine Litter which is part of the OSPAR Commission’s mandate to “[p]revent inputs of … marine litter, … in the marine environment” to inter alia limit “adverse impacts to the marine and coastal environment.” OSPAR Commission, ‘Action Plan for Marine Litter’ Work Areas (28 June 2022) https://​www​.ospar​.org/​news/​ospar​-launches​-2nd​-marine​-litter​-regional​-action​-plan​-at​ -the​-united​-nations​-ocean​-conference​-in​-lisbon​-portugal>.

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environment from dumping, vessel source pollution, and land-based sources under Articles 194, 195, 207 and 213.96 Articles 194 and 195 As noted above Article 194(1) of UNCLOS provides that states should take all necessary measures to “prevent, reduce and control pollution of the marine environment from any source.”97 Article 194(2) imposes a duty to not, “cause damage by pollution to other states and their environment.98 Article 194(3)(a) outlines sources of pollution to be minimized, including toxic, harmful or noxious substances.99 It includes pollution which is persistent, importantly from land-based sources, via the atmosphere or by the act of dumping.100 Clearly plastic waste that ends up in the ocean or seas is caught by this provision, particularly single-use plastic. Similarly, Article 195 imposes a duty on state to not create environmental damage in transferring or transforming waste.101 It can cover scenarios when waste is incinerated, since it is therefore ‘transformed’ into toxic fumes that pollute the atmosphere.102 Articles 207 and 213 Article 207 was designed to cover the transboundary issue of land-based pollution.103 It states: 1. States shall adopt laws and regulations to prevent, reduce and control pollution of the marine environment from land-based sources, including rivers, estuaries, pipelines and outfall structures, taking into account internationally agreed rules, standards and recommended practices and procedures.104

96 UNCLOS; Raubenheimer and McIlgorm, ‘Can the Basel and Stockholm Conventions provide a global framework?’, 286; Carlini and Kleine, ‘Advancing the international regulation’, 236; Sally Ann Lentz, ‘Plastics in the Marine Environment: Legal Approaches for International Action’ (1987) 18(6) The Oceanic Society 361, 361. 97 UNCLOS, opened for signature 10 December 1982, 1833 UNTS 3 (entered into force 16 November 1994), part XII. 194(1). 98 Ibid., art 194(2). 99 Ibid., art 194(3)(a). 100 Ibid., art 194. 101 Ibid part XII., art 195. 102 Dauvergne, ‘Why is global governance of plastic failing?’, 25. 103 Akiko Takano, ‘Land-Based Pollution of the Sea and Due Diligence Obligations’ (2017) 60 Journal of Law, Policy and Globalization 92, 92. 104 UNCLOS, art 207(1).

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The Article further stipulates that states shall take other measures necessary to address land based pollution105 and shall also endeavour to harmonize their disparate policies at the appropriate regional level.106Article 207 further obliges states to seek to establish global and regional rules standards and recommended practices and procedures by, “taking into account characteristic regional features, the economic capacity of developing states and their need for economic development.”107 Such rules and standards should also be designed to minimize the, “release of toxic, harmful or noxious substances especially, those that persist in the environment.”108 Problematically, the Article provides little guidance on what such rules and standards should be. Such detail would be filled out by, “internationally agreed rules, standards and recommended practices and procedures.109 Further, the provision offers no timeline for the adoption of such measures by states. Neither does it obligate states to give effect to such internationally agreed standards or clearly indicate which standards are considered under the aegis of the provision.110 Kirk and Popattanachai note that such limitations risk the “fragmentation of legal standards” and further allows “standard shopping” as states join subsequent agreements or institutions based on their national priorities which rarely include dealing with such a complex, expensive issue.111 Compounding the problem, Article 207 provisions are generally regarded as the weakest UNCLOS provision.112 It is criticized as merely imposing a broad and general obligation with little practical effect.113 Further, it grants states significant discretion to define the boundaries of their agreed to obligations. It relies on the “good faith” of members to create such frameworks, rather than setting out specific pollution measures that would effectively guide the conservation and preservation of the marine environment.114 Lastly, the Ibid, art 207(2). Ibid, art 207(3). 107 Ibid, art 207(4). 108 Ibid, art 207(5). 109 Ibid, art 207(4) 110 Elizabeth A Kirk and Naporn Popattanachai, ‘Marine plastics: Fragmentation, effectiveness and legitimacy in international lawmaking’ (2018) 27 RECIEL 223 (Kirk and Popattanachai, ‘Marine plastics’). 111 Ibid. 112 Guy Graney, ‘Slipping through the Cracks: How Tiny Plastic Microbeads are Currently Escaping Water Treatment Plants and International Pollution Regulation’ (2016) 39(4) Fordham International Law Journal 1023, 1040. 113 Daud Hassan, ‘International Conventions Relating to Land-Based Sources of Marine Pollution Control: Applications and Shortcomings’ (2004) 16(4) Georgetown International Environmental Law Review 657, 668. 114 Alan Boyle, ‘Marine Pollution under the Law of the Sea Convention’ (1985) 79(2) The American Journal of International Law 347 (Boyle, ‘Marine Pollution’) 357. 105 106

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obligations are merely a weak agenda for action given land-based sources are located within states own territories where any action occurs according to an individual state’s priorities.115 Thus, at best Article 207 is mostly hortatory in nature.116 It outlines a bare framework with declared ambitious goals but does not have the capacity to enforce such goals.117 Article 213 reflects the weak terminology of Article 207 requiring that states “shall enforce the laws they create” and “take other measures necessary” to utilize international rules and standards.118 As any standards are relative to what the states determine to date there has been little enforcement in this area. The Problematic Nature of UNCLOS When it comes to the issue of marine plastic pollution, the current iteration of UNCLOS has proved ineffective in preventing or ameliorating the issue for a number of factors. Firstly, it does not acknowledge plastics as a separate from of waste. This includes being broad such as not detailing the pollutants, unspecific obligations with agreed rules, standards, and recommended practices and procedures, and no timeline for states to adopt measures under those Articles.119 Second, UNCLOS faces mitigation gaps and assigning removal duties of plastic marine pollution from the high seas (outside the 200 nautical mile limit), because it is difficult to determine the at fault party, and given the relative weaknesses of its enforcement provisions, hold states responsible for their actions.120 The transboundary nature of marine pollution where plastics emerge far from its originating source further complicates the ability of affected states to bring a claim against others for violating standards.121 Thirdly, UNCLOS does not have an effective compensation scheme to accommodate when states are required to engage in mandatory pollution control.122 Many states 115 Matthew Schroeder, ‘Forgotten at Sea – An International Call to Combat Islands of Plastic Waste in the Pacific Ocean’ (2010) 16(1) Southwestern Journal of International Law 265 (Schroeder, ‘Forgotten at Sea’) 276. 116 Boyle, ‘Marine Pollution’, 354. 117 Olga Goldberg, ‘Biodegradable Plastics: A Stopgap Solution for the Intractable Marine Debris Problem’ (2012) 42(3) Texas Environmental Law Journal 307, 329. 118 UNCLOS, art 213. 119 Kirk and Popattanachai, ‘Marine plastics’, 223; Joanna Vince and Britta Denise Hardesty, ‘Plastic pollution challenges in marine and coastal environments: from local to global governance’ (2017) 25(1) Restoration Ecology 123, 124. 120 Vince and Hardesty, ‘Governance Solutions’, 124. 121 Schroeder, ‘Forgotten at Sea’, 275. 122 João Pinto da Costa et al, ‘The Role of Legislation, Regulatory Initiatives and Guidelines on the Control of Plastic Pollution’ (2020) 8 Frontiers in Environmental Science 1 (da Costa et al, ‘The Role of Legislation’) 2.

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are unwilling to invest their financial resource into fixing an issue created by others and this extends to the issue of plastic. Despite recognizing a distinction between sea-based and land-based pollution, the UNCLOS fails to list the kind of pollutants and technical rules for clarity and in response to the different source points of pollution. This requires states to “fill in the gaps” by adopting individual domestic regulations leading to a fragmented regulatory regime. The effectiveness of UNCLOS is further restricted due to “various exemptions and opt-out provisions”. For instance, UNCLOS does not penalize ships for accidentally losing fishing gear and incidentally disposing of plastic waste.123 More broadly, as with many international legal instruments, the concept of state sovereignty permeates the text of UNCLOS,124 with excessive reiteration throughout the Convention of each state’s right to decide actions and go against their duties undermining pollution controls.125 For example, Article 210(1) states that states should adopt domestic laws with the aim of regulating and reducing pollution.126 However the provision is undercut by a latter sub-Article (210(5)) which asserts that states have the power to, “permit, regulate and control such dumping” of pollution if they so choose to.127 A further perennial issue is that the U.S. despite being one of the largest contributors to marine plastic pollution is not a signatory state to UNCLOS, rendering the provisions severely weakened.128 Given its outsized role in creating international environmental agreements, its powerful economy producing and consuming plastic [source] and large population, the loss is keenly felt. At best UNCLOS can be understood as only a declarative document when it comes to protection against marine pollution. As Dehner notes, it has not yet (and may never) evolve into an effective environmental regime on this issue.129 Tharpe bolsters that argument when she argues that in its current configuration UNCLOS: “[lacks] the detailed prescriptions necessary for effective adminis-

Gold et al, ‘Stemming the Tide’, 182. Danielle Spiegel-Feld and Katrina M Wyman, ‘Cities as International Environmental Actor: The Case of Marine Plastics’ (2020) 62(2) Arizona Law Review 489 (Spiegel-Feld and Wyman, ‘Cities as International Environmental Actor’). 125 da Costa et al, ‘The Role of Legislation’, 1–2. 126 UNCLOS, art 210(1). 127 Ibid, art 210(5). 128 da Costa et al, ‘The Role of Legislation’, 2. 129 J Dehner, ‘Vessel-Sourced Pollution and Public Vessels: Sovereign Immunity v. Compliance. Implications for International Environmental Law’ (1995) 9(2) Emory International Law Review 507, 510. 123 124

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tration of an international pollution-control regime” by which to deal with the burgeoning problem of marine plastic pollution.130

OTHER RELEVANT INTERNATIONAL CONVENTIONS Other binding international instruments may also be applicable to the issue of plastic pollution. These include the Stockholm Convention131 which controls the use of certain chemicals in the production of plastics, and the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal which recently has sought to tackle the issue of transporting plastic waste, deeming it hazardous.132 Stockholm Convention The additives used in the lifecycle of plastics are numerous and the risks to human health and the environment are not adequately reflected in legal and policy frameworks at the international and regional level.133 The Stockholm Convention on Persistent Organic Pollutants (POPs) provides for some regulation of the production, use and disposal of additives used in the manufacture of plastics. It aims to restrict, prohibit or eliminate intentional production and use of chemicals listed in Annex A and B134 and to reduce or eliminate releases from unintentional production of chemicals listed in Annex C to the Convention.135

130 Yvonne Tharpes, ‘International Environmental Law: Turning the Tide on Marine Pollution’ (1989) 20(3) The University of Miami Inter-American Law Review 579, 612. 131 Stockholm Convention on Persistent Organic Pollutants (adopted 22 May 2001, entered into force 17 May 2004) 2256 UNTS 119. 132 Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal (adopted 22 March 1989, entered into force 5 May 1992) 1673 UNTS. 133 United Nations Environment Assembly of the United Nations Environment Programme, Third session Nairobi, 4–6 December 2017, Combating marine plastic litter and microplastics: An assessment of the effectiveness of relevant international, regional and subregional governance strategies and approaches (UNEP/EA.3/INF/5), 19. 134 The Stockholm Convention, art 3. 135 Ibid, art 5. Raubenheimer and McIlgorm, ‘Can the Basel and Stockholm Conventions provide a global framework?’, 287.

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Plastic additives listed under the Stockholm Convention relevant include: • polychlorinated biphenyls (PCBs),136 which are often detected in marine plastic litter at a high concentration due to the adhesive property of plastics.137 One of the most important contemporary sources of PCBs is old painted surfaces, such as buildings and bridges;138 • brominated diphenyl ethers (commercial pentaBDE and commercial octaBDE139 used as flame retardants in plastics, polyurethane foams and textiles;140 • articles that contain or may contain those chemicals, including in plastics, until 2030; • perfluorooctane sulfonic acid (PFOS) and perfluorooctanoic acid (PFOA),141 used as an additive in plastics. Fluorinated polymers containing PFOS and PFOA precursors used in some textile fibres and in paper and paperboard articles (i.e. fast-food packaging and paper plates, cups, etc.) to provide grease and water resistance [55], can become microplastics/ fibres in the aquatic environment and release PFOS when degrading or ingested.142 According to Article 6 of the Convention, recovery, recycling, reclamation, direct reuse or alternative uses of POPs are not permitted. However, there are possible exemptions and exceptions. For example, the BDEs are listed in Annex A with specific exemptions, which allow registered parties to continue recycling of articles that contain or may contain those chemicals, including in plastics, until 2030.143 It achieves this goal by restricting the use of certain POPs within the manufacturing process and seeking to increase rates of recycling and reusing.144

136 Listed in Annex A to the Stockholm Convention with specific exemptions and in Annex C. 137 Annex A. 138 Morten Jartun and Eiliv Steinnes, ‘Painted surfaces – Important sources of polychlorinated biphenyls (PCBs) contamination to the urban and marine environment’ (2008) 157(1) Environmental Pollution 295. 139 Listed in Annex A to the Stockholm Convention. 140 Frederic Gallo et al, ‘Marine litter plastics and microplastics and their toxic chemicals components: the need for urgent preventive measures’ (2018) 30 Environmental Sciences Europe article 14 (Gallo et al, ‘Marine litter plastics and microplastics’). 141 Listed in Annex B to the Stockholm Convention with acceptable purposes and specific exemptions. 142 Gallo et al, ‘Marine litter plastics and microplastics’. 143 Stockholm Convention, Annex A, part V. 144 Raubenheimer and McIlgorm, ‘Can the Basel and Stockholm Conventions provide a global framework?’, 287.

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Unlike the Basel Convention on Hazardous Wastes, the Stockholm Convention, as per Article 3, addresses the start of the waste lifecycle by reducing the creation of POPs at the initial stage.145 Furthermore, the Convention provides for the exchange of information between states,146 encourages public information, awareness and education147 and provides lists of prohibited chemicals.148 Therefore, not only does the Convention restrict POP source production but also broadens consumer knowledge of POPs in terms of their environmental risks but also allows for the uptake of viable alternatives but currently does not provide a list of alternatives.149 Further, the Convention is limited when dealing with plastic pollution for a number of issues. Its application is limited to those plastics produced with POPs listed under the Convention. The treaty is limited to products containing or contaminated with listed POPs. For example, food packaging, a large component of plastic waste is unlikely to contain POPs. Plastic waste food packaging, may not contain flame retardants, PFOA, or other POP chemicals controlled under its auspices.150 It also grants individual states the decision as to which substances they can adopt to regulate.151 However, as the majority of plastic created does not contain POPs (approximately 26% of global plastics is produced for packaging alone), its ambit is limited when it comes to plastics.152 Further, while POPs are used to produce some plastics, the majority of plastics are created with additives that fall outside the scope of the convention as currently written.153 Many of those additives are of high concern, with known or suspected endocrine disrupting properties, including alkylphenols (octylphenol and nonylphenol) used mainly as antioxidants, bisphenol A (BPA), phthalate (DEHP), diisodecyl phthalate (DIDP), diisononyl phthalate (DINP) and butyl benzyl phthalate (BPP), widely used as plasticizers in proportions up to 60% of the weight of a plastic to

Ibid. Stockholm Convention art 3(a)(i). Ibid, art 9. 147 Ibid, art 10. 148 Ibid, art 9, 8(1). 149 Raubenheimer and McIlgorm, ‘Can the Basel and Stockholm Conventions provide a global framework?’, 288. 150 Ibid. 151 Alan E Boyle, ‘Protecting the marine environment: Some problems and developments in the law of the sea’ (1992) Marine Policy 79, 81. 152 Raubenheimer and McIlgorm, ‘Can the Basel and Stockholm Conventions provide a global framework?’, 288. 153 Environmental Investigation Agency, Convention on Plastic Pollution, Toward a new global agreement to address plastic pollution (June 2020) 9 (EIA Proposed Plastic Convention Report). 145 146

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increase properties such as flexibility, transparency or longevity, and organotin compounds (based on methyl, butyl or octyl groups, such as tributyltin used as stabilizing additives in some PVC polymers).154 Thus currently, this treaty has only limited impact on a relatively small proportion of plastics. Though the Stockholm Convention constrains the production and consumption of POPs, its current focus on solely hazardous pollutants limits its application to general plastic pollution. However, the Convention’s further and more particular listings of plastic or chemicals utilized in plastic production in its Annexes could potentially regulate production of contaminated as well as virgin plastics such as food packaging if member-states were willing too. Plastic Pollution and the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal (Basel Convention) Hazardous waste is a persistent environmental problem that the modern world faces. It can be defined as any material that may pose a substantial threat or potential hazard to human health or the environment when managed improperly including solid wastes, liquids and gases.155 Hazardous waste has many sources including manufacturing, laboratories, farming and construction.156 Such waste products can remain in the environment for decades, unable to be broken down.157 Prior to the implementation of the Basel Convention in 1989 the regulation of hazardous waste was considered to be ad-hoc “soft law”.158 In the 1980s, there was a growing concern about “uncontrolled transboundary movements” of hazardous waste of hazardous waste.159 To deal with it at the international trade level, The Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal was first adopted in 1989 and came into

Gallo et al, ‘Marine litter plastics and microplastics’. EPA, Criteria for the Definition of Solid Waste and Solid and Hazardous Waste Exclusions (webpage) . 156 Michael LaGrega, Phillip Buckingham and Jeffrey Evans, Hazardous Waste Management (Waveland Press, 2010) 20. 157 L Fazzo et al, ‘Hazardous waste and health impact: A systematic review of the scientific literature’ (2017) 16(1) Environmental Health 107, 1. 158 Matiangai Sirleaf, ‘Not Your Dumping Ground: Criminalization of Trafficking in Hazardous Waste in Africa’ (2018) 35(2) Wisconsin International Law Journal 326 (Sirleaf, ‘Not Your Dumping Ground’) 340. 159 Jonathan Krueger, ‘Prior Informed Consent and the Basel Convention: The Hazards of What Isn’t Known’ (1998) 7(2) The Journal of Environment & Development 115. 154 155

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effect in 1992. The Basel Convention is now considered the most comprehensive global environmental agreement on hazardous waste.160 The Convention is managed by a Secretariat that acts to identify illegal waste trafficking, while providing assistance to states in cases of emergency, and receiving and conveying information to Member States.161 As of September 2021, 188 countries were parties to the Convention (almost universal membership).162 From its birth, the Convention has been rent over the question of whether there should be a complete ban on the trade of hazardous waste.163 The context of the debate around the development of a limited transboundary agreement is crucial in this case. African states and other lesser developed states, combined with NGOs in calling for a complete banning of transboundary movement of hazardous waste. They argued such a ban was the “only means to force industrialised states to dispose of their own wastes” which would protect vulnerable developing nations from becoming the “dumping ground of the wealthy North”.164 Developed states, supported by some in the developing world, opposed such a moratorium, concerned such a move would be to the financial detriment of both since the developed world would no longer be able to export their waste, having to process it domestically instead, and with the developing world missing out on the revenue streams associated with the trade. The argument went that the trade provided economic benefits to LDCs including recycling industries that had developed in their countries, and that limiting such a sector would come at a cost.165 In immediate conclusion of the Basel Convention the developed states’ arguments won the day seeing as no direct ban was imposed. The debate continues to underpin the Convention deliberation to this day, and has led inter alia to the 1994 Second Conference of the Parties adoption of the “Basel ban” on exports of hazardous waste from OECD states, EU Member States and Liechtenstein, to developing countries or

160 Olanrewaju Fagbohun, ‘The Regulation of Transboundary Shipments of Hazardous Waste: A Case Study of the Dumping of Toxic Waste in Abidjan, Cote D’Ivoire’ (2007) 37(3) Hong Kong Law Journal 831 (Fagbohun, ‘The Regulation of Transboundary Shipments’) 837. 161 Erika Techera et al, Routledge Handbook of International Environmental Law (Taylor & Francis Group, 2012) (Techera et al, Routledge Handbook) 301. 162 Parties to the Basel Convention on the Control of Transboundary Movements of Hazardous Waste and their disposal Secretariat of the Basel Convention, . 163 See also the infamous Larry Summer memo, ‘Let them eat pollution’ on 8 February 1992, The Economist (8 February 1992) . 164 Katharina Kummer, ‘The Basel Convention: Ten Years On’ (1998) 7(3) RECIEL 227. 165 Ibid.

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economies in transition. The Decision was carried over in 1995 as a proposed amendment to the Convention, which, following the prerequisite ratifications, finally entered into force on 5 December 2019 (many countries, including EU Member States, having already implemented the ban in their national laws) – more on this below. The overall goal of the Convention is “to protect human health and the environment against the adverse effects that may result from the generation, transboundary movements and management of hazardous and other wastes.”166 The aim of the treaty is “to help reduce the number of transboundary movements and the quantity of hazardous wastes to a minimum, and to manage and dispose of these wastes in an environmentally sound manner” by enforcing an agreed regime of rules and licences.167 The Preamble of the Convention notes the, “most effective way of protecting human health and the environment from the dangers posed by hazardous and other wastes” is to reduce the quantity of such waste created “to a minimum in terms of quantity and/or hazard potential.”168 Cox notes the Preamble explicitly mentions the “limited capabilities of the developing countries to manage hazardous wastes and other wastes” and, “the need to promote the transfer of technology for the sound management of hazardous wastes and other wastes produced local, particularly to the developing countries.”169 As per Annex I hazardous wastes are therefore defined as including certain listed wastes and waste streams.170 A listed waste is considered hazardous if it displays one of the “hazardous characteristics” set out in Annex III.171 Designated “Other wastes” are listed in Annex II and include household waste and incinerator ash.172 Hazardous waste is also often characterized as “waste requiring special consideration”.173 Under the Convention, “wastes” are further 166 The National Environmental Agency (Singapore), The Main Provisions of the Basel Convention, . 167 Ibid. 168 Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal, Preamble. 169 Gary Cox, ‘The Trafigura Case and the System of Prior Informed Consent under the Basel Convention – A Broken System’ (2010) 6(3) Law, Environment and Development Journal 263, 265. 170 Annex 1. 171 Techera et al, Routledge Handbook, 298. 172 Secretariat of the Basel Convention, Overview . 173 Sahaa Ahmad Khan, ‘Clearly hazardous, obscurely regulated: lesion from the Basel Convention on waste trade’ (2020) 114 AJIL Journal 201 (Ahmad Khan, ‘Clearly hazardous, obscurely regulated’).

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defined as “substances or objects which are disposed of or are intended to be disposed of or are required to be disposed of by the provisions of national law.”174 The reference to national law as the trigger for a substance being regarded as “waste” is an obvious shortcoming of the Convention which has led to many complications inter alia in the area of shipbreaking (defining the moment a discontinued ship stops being a vessel and becomes a “waste”). Article 10 of the Basel Convention asks the Parties to “co-operate with each other in order to improve and achieve environmentally sound management of hazardous wastes and other wastes.”175 Article 2(d) and 4 also advocates for cooperation between COP members in developing technical capacity, taking into account the needs of developing countries to “promote, inter alia, public awareness, the development of sound management of hazardous wastes and other wastes and the adoption of new low-waste technologies.” Further, each Member State has the obligation to ensure that the transboundary movement of hazardous and other wastes is reduced to the minimum consistent with the environmentally sound and efficient management of such wastes.”176 Member States are to lessen the generation of hazardous waste, taking into account social, technological and economic considerations.177 They must ensure the availability of adequate disposal facilities178 and that necessary steps are taken to minimize impacts on human health and the environment.179 They must also must undertake any transportation and disposal of hazardous waste in an “environmentally sound manner”.180 Members are also required to take appropriate legislative and administrative measures to implement and enforce the provisions of the Convention, including measures to prevent and punish conduct in contravention of the Convention.181 The Convention reinforces a Member State’s sovereign right to prohibit the importation of hazardous waste by allowing a transit or importing state to deny permission, request further information or grant conditional approval subject to conditions.182 The Convention places an onus on exporting countries to ensure that hazardous wastes: “are managed in an environmentally

Techera et al, Routledge Handbook, 298. Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal, art 10, 1. 176 Ibid, art 2 [8]. 177 Ibid, art 4 [2a] 178 Ibid, art 4 [2b]. 179 Ibid, art [2c]. 180 Ibid, art 4 [2] and [8] 181 Ibid, art 4 [4]. 182 Ibid, art 6. 174 175

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sound manner in the country of import.”183 Intriguingly, the mechanism of prior informed consent (PIC) was inserted in the text, whereby states could not export hazardous waste to another nation unless that nation’s “competent authority … has been properly informed and has consented.”184 Therefore the export of hazardous waste is prohibited until the importing and transit Member States have provided written authorization.185 Such written consent requires the designated competent authority of the importing Member State to further ensure the transaction provides for environmentally sound management of the waste.186 The notification must also include specific information regarding the nature, volume, generator’s details, and the ultimate disposal of the waste.187 Parties are only allowed to trade waste if the exporting state does not have the, “technical capacity and infrastructure to ensure environmentally sound and efficient disposal.”188 If the parties trade plastic waste, the trade must be reduced to a minimum, in line with the Preamble, and it must be disallowed if the receiving party believes the waste will not be managed appropriately or the exporting party believes the management of waste by the receiving party is not environmentally sound.189 The primary benefit of the PIC scheme is that it allows the waste trade to operate at the control and agreement of the receiving Member State. However, as currently configured it is not without problems. Where consent is not obtained correctly or in a timely manner, it can create opportunities for the improper disposal or dumping of hazardous waste. Further, there is no mechanism or process for the exporting country to verify and be satisfied that the appropriate hazardous waste management facilities exist or are available in the importing state. Also problematically, importing states representations that they have the requisite facilities can be enough for exporting states to rely on without independent verification of the veracity of such claims.190

183 Australian Government, International hazardous waste conventions (webpage) . 184 Ibid. 185 Basel Convention, art 6 [3]. 186 Basel Convention Plastic Waste Amendment’, Secretariat of the Basel Convention, . 187 Ibid, art 6. 188 Raubenheimer and Urho, ‘Rethinking global governance of plastics’, 2. 189 Basel Convention, art 4.2; Raubenheimer and Urho, ‘Rethinking global governance of plastics’, 4. 190 Alan Andrews, ‘Beyond the ban – Can the Basel Convention adequately safeguard the interests of the world’s poor in the international trade of hazardous waste?’

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Such a lack of rigour leaves the PIC process susceptible to corruption and economic pressure.191 The current self-verifying PIC provisions do not appear to put in place appropriately safeguards against the economic drivers which affect a country’s decision making and trade competition given that for some developing countries the global hazardous waste trade provides significant employment and economic revenue.192 Basel Ban Amendment The so-called ‘Ban Amendment’ adopted at the 1995 Basel conference by COP states sought to prohibit the export of hazardous waste from a Member State of the Organisation of Economic for Cooperation and Development (OECD), the EU and Liechtenstein to a non-OECD Member country on the basis there was considered to be a lack of rigour with the enforceability of the Convention.193 The Ban Amendment did not come into effect until 5 December 2019, when the required 75% of parties to the Convention ratified the Amendment when Croatia became the 97th state to ratify the amendment.194 The Ban, in its simplest form, uses a crude binary approach to distinguish between countries within Annex VII. Such a division does not recognize that, within the group of non-OECD countries, exists a wide range of institutional and economic capacity and waste management approaches.195 For example, Singapore has advanced waste management practices, yet is not precluded from trading its waste with other non-OECD countries which are likely to hold lesser capability.196 An unintended consequence may therefore be a low incentive for non-OECD countries to improve their waste disposal processes. The Amendment appears to be a significant development in minimizing the global hazardous waste trade. If followed through with the commitments made, it has the potential to prevent the developing world from being used as a dumping ground for hazardous waste. However, given its relative recent rat(2009) 5(2) Law Environment and Development Journal 166 (Andrews, ‘Beyond the ban’) 171. 191 Fagbohun, ‘The Regulation of Transboundary Shipments’, 841. 192 Andrews, ‘Beyond the ban’, 169. 193 Ibid, 171. 194 ‘Amendments to the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal’, Secretariat of the Basel Convention (Website, undated) . 195 Josh Lepawsky, ‘Are we living in a Post-Basel World?’ (2015) 47(1) Area 7 12. 196 John Geddie, ‘In Singapore where trash becomes ash, plastics are still a problem’, Reuters (6 June 2018) .

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ification, it is too soon comprehensively to quantify the impacts and expected benefits of the Amendment.197 The World Customs Organization notes trade volumes have decreased since the introduction of the Ban198 but the authors speculate this is more likely to be a result of increased illegal trading of waste to avoid regulatory oversight.199 Plastic waste and the 2019 Norwegian Amendment Before 2019 “solid plastic waste” was presumed to be “non-hazardous” and therefore excluded from the scope of regulated waste under the treaty.200 During the 14th meeting of the Conference of the Parties April–May 2019,201 amendments first proposed by Norway and adopted by the 187 parties in accordance with the Convention’s objectives of, “enhancing the control of transboundary movements of plastic waste and clarifying the scope of the Convention as it applies to such waste”,202 plastic wastes (including mixed, unrecyclable and contaminated plastic waste exports waste)203 were henceforth presumed to be hazardous and were to be subject to the procedure of prior informed consent (PIC) when being exported.204 Amendments were made to Annexes II, VIII and IX. Under this procedure, parties are not allowed to export hazardous waste unless the state importing the waste has given its consent to the shipment beforehand in writing together with a series of other requirements.205 In contrast, entry B3011, added to Annex IX of the Convention, denotes the types of plastic wastes that are deemed not hazardous and therefore are not

197 ‘The entry into force of the Basel Ban Amendment; A guide to implementation and next steps’, Basel Action Network (January 2020) . 198 Kenji Omni, ‘Current situation, analysis and observations on waste control at borders by Customs’ (WCO Research Paper No 50, World Customs Organization, 20 December 2020), 10. 199 Ibid. 200 Ahmad Khan, ‘Clearly hazardous, obscurely regulated’, 201. 201 ‘Basel Convention Plastic Waste Amendments’, Basel Convention (Web Page) . 202 Ibid. 203 Secretariat of the Basel Convention, ‘Overview’ United Nations Environment Programme, Basel Convention . 204 Basel Convention Plastic Waste Amendments’, Basel Convention . 205 Ahmad Khan, ‘Clearly hazardous, obscurely regulated’, 201.

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required to abide by the PIC procedure.206 These non-hazardous plastic wastes include a group of cured resins, non-halogenated and fluorinated polymers, provided the waste is destined for recycling in an environmentally sound manner and almost free from contamination and other types of wastes, mixtures of plastic wastes consisting of polyethylene (PE), polypropylene (PP) or polyethylene terephthalate (PET) provided they are destined for separate recycling of each material and in an environmentally sound manner, and almost free from contamination and other types of wastes.207 States are thus (theoretically) legally bound to be transparent and to have better regulation to protect the safety of human health and the environment.208 The goal here is first, stricter transparency and regulation to promote recycling within the larger plastic waste producer states. Second, it will ensure developing states deny unrecyclable and contaminated plastic entry to their border because they lack the technical capacity and infrastructure to ensure environmentally sound management of plastic waste.209 The amendment came into force on 1 January 2021.210 Again, the U.S. opposed this overwhelming consensus and voted against this amendment.211 The 2019 COP also initiated an update of the technical guidelines for environmentally sound plastics waste management, which date back to 2002.212 Issues with the Basel Convention Although the Norwegian plastic amendment is a significant and historic achievement, its success must be tempered with the number of outstanding questions that still need to be answered. The main problem impacting the application of the Basel Convention to plastic waste is the often inconclusive

Basel Convention Plastic Waste Amendments’, Basel Convention. Ibid. 208 S Kordella, H K Karapanagioti and G Papatheodorou, ‘The need for a global plastic strategy’ in Hrissi K Karapanagioti and Ionnis K Katavrouziotis, Microplastics in Water and Wastewater (1st edn, IWA Publishing, 2019), 197. 209 Basel Convention, art 4.2.d; Raubenheimer and McIlgorm, ‘Can the Basel and Stockholm Conventions provide a global framework?’. 210 Basel Convention Plastic Waste Amendments. 211 Dominique Mosbergen, ‘How America Is Sabotaging The Global War on Plastic Waste’, Breakfreefromplastic (22 May 2019) . 212 ‘Technical Guidelines for the Identification and Environmentally Sound Management of Plastic Wastes and for Their Disposal’ UNEP/CHW.6/21, 23 August 2002, adopted by Decision BC-6/21 (COP6, 2002). 206 207

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and open-ended language on the provisions relating to plastics.213 It has proven difficult to enforce compliance on states, which has led to guidelines being rarely effective.214 For example, China which until recently, importing globally traded plastic waste, was notorious for failing to comply with trade regulations and guidelines under the Convention.215 The Basel Convention also fails to provide clear definitions regarding how best to classify wastes as a result, as signaled above, of the deference to national law on the very issue of a substance being “waste”. These lacunae and loopholes “perpetuate problems with implementation.”216 One of the significant ambiguities occurs in the distinction between “waste” and “non-waste”, and “hazardous” and “non-hazardous”. The definition of “hazardous waste” is of critical importance as it determines whether a product is governed by the Convention. Beyond these definitional uncertainties, a Member State must consider how much, and composition of, a listed waste constitutes it as a hazardous waste.217 For example, does a small trace amount present within a listed waste render it hazardous? This ambiguity is likely to lead Member States to reach differing conclusions on what constitutes hazardous waste.218 Household plastic waste is classified as “the wastes which requires special consideration”, and therefore most plastics do not fall under the definition of hazardous wastes.219 There also needs to be greater clarity provided as to what can be considered a hazardous or non-hazardous plastic waste. The Norway amendment notes that any shipment of plastic waste needs to be “almost free from contamination” and “almost exclusively” of one polymer or resin.220

213 Simon Silns and Maro Luisa Schulte, Stopping Global Plastic Pollution: The Case for an International Convention (Heinrich-Böll-Foundation, 2017) (Silns and Schulte, Stopping Global Plastic Pollution) 26; Raubenheimer and McIlgorm, ‘Can the Basel and Stockholm Conventions provide a global framework?’. 214 Ibid. 215 Raubenheimer and McIlgorm, ‘Can the Basel and Stockholm Conventions provide a global framework?’. 216 Laura Pratt, ‘Decreasing Dirty Dumping? A Reevaluation of Toxic Waste Colonialism and the Global Management of Transboundary Hazardous Waste’ (2011) 35 William & Mary Environmental Law and Policy Review 581, 179. 217 David Hackett, ‘An Assessment of the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal’ (1990) 5(2) American University International Law Journal 291, 314. 218 Ibid. 219 Karen Raubenheimer, Nilüfer Oral and Alistair McIlgorm, Combating Marine Plastic Litter and Microplastics: Summary for Policymakers (1st edn, United Nations Environment Programme, 2017), 286; Basel Convention, Annex II. 220 Ahmad Khan, ‘Clearly hazardous, obscurely regulated’, 203.

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Such ambiguity can result in different interpretations that can undermine the effectiveness of the new amendments.221 As of the amendment, 91% of plastic waste will be classified as uncontaminated recyclable plastics which will significantly help limit the global plastic waste trade which will require developed states to build domestic recycling and disposal facilities to deal with their plastic waste streams.222 Many of the provisions are still too vague to have any authority in regulating how states deal with their waste.223 The amendment failed to put in place overall reduction targets, clear reporting obligations or effective monitoring processes that can tell whether the trade is being reduced.224 Further, Basel only applies to plastics which can be classified as “hazardous waste” meaning many types of plastics are excluded from this definition, yet still pervasive and hence problematic in marine ecosystems.225 The parties thus still determine what constitutes “hazardous” and “other” waste within their domestic jurisdictions.226 Nor does it address the vexing issue of “upstream” production of plastic as a cause of marine plastic pollution.227 Further, such ambiguities at the global level allows, “inconsistent domestic legal interpretations” of the provisions undermining global plastic waste reductions.228 Ambiguity regarding the application of the Basel Convention creates a significant burden on regulators regardless of their substantive resources or capability. Goodall argues this flaw further: … complicates the process of adhering to the Basel Convention and increases the likelihood that informal or illegal routes will be taken to avoid the matter entirely. This challenge may be more pronounced in less developed countries where physical

Ibid. Yeeun Uhm, ‘Plastic waste trade in Southeast Asian after China’s import ban: Implications of the new Basel Convention Amendment and recommendations for the future’ (2020) 57(1) California Western law Review 15. 223 Raubenheimer and McIlgorm, ‘Can the Basel and Stockholm Conventions provide a global framework?’, 287. 224 Ibid; Ahmad Khan, ‘Clearly hazardous, obscurely regulated’, 204; Raubenheimer and Urho, ‘Rethinking global governance of plastics’, 5. 225 Ahmad Khan, ‘Clearly hazardous, obscurely regulated’, 205. 226 Olivier Barsalou and Michael Hennessy Picard, ‘International Environmental Law in an Era of Globalized Waste’ (2018) 17(3) Chinese Journal of International Law 887 (Barsalou and Picard, ‘International Environmental Law’) 889. 227 Ahmad Khan, ‘Clearly hazardous, obscurely regulated’, 205. 228 Ibid, 203. 221 222

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and technical resources or information may not be adequate to readily implement the Basel Convention.229

On a practical level, Schneider argues the broad definitions engenders confusion; a challenge also acknowledged by the United Nations Environment Programme (UNEP) as a driver of unintentional breaches of the legal framework.230 The Convention Secretariat has also recognized these shortcomings publicly and notes the need to ensure a common understanding of substances and objects falling under the Convention’s scope. Parties over various meetings have resolved to convene a working group to review Annexes I, II and IV and related aspects of Annex IX. These working groups have been meeting since 2016 and most recently in September 2021.231 Its work is still ongoing with no clear implementation timeframe in sight. Under the current PIC scheme, there is no guarantee that recipient countries will be fully informed of the risks involved with the hazardous waste transfer. Furthermore, there is often a lack of administrative, technical and financial resources to monitor the prior informed consent procedures.232 This results in an inability for lesser developed countries to assess the risks of importing the waste and make informed decisions. However, the “loophole” of recycling has also proved fraught when it comes to limiting the plastic waste trade. Specifically, if the plastic waste can be recycled in an environmental manner it can be excepted from Basel’s regulatory ambit.233 Developed states have thus been trading 45% of their plastic waste to developing nations by claiming that the plastic waste is a recyclable commodity.234 Such an exception threatens to undermine the new amendments scope

229 Michael Goodall, ‘Regulation of electronic waste under the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal’ (2019) 36(4) Environmental and Planning Law Journal 322, 329. 230 William Schneider, ‘The Basel Convention Ban on Hazardous Waste Exports: Paradigm of Efficacy or Exercise in Futility’ (1996) 20(1) Suffolk Transnational Law Review 247, 268; UNEP, ‘Waste Crime: Low Risks – High Profits. Gaps in Meeting the Global Waste Challenge. A Rapid Response Assessment’ (2015), 15. 231 Legal clarity overview Basel Convention Secretariat (webpage, undated) . 232 Zada Lipman, ‘Trade in Hazardous Waste’ in Shwkat Alam et al (eds), International Environmental Law and the Global South (Cambridge University Press, 2015) 256 (Lipman, ‘Trade in Hazardous Waste’) 256. 233 Sabaa Ahmad Khan, ‘E-products, E-waste and the Basel Convention- Regulatory Challenges and Impossibilities of International Environmental Law’ (2016) 25(2) Review of European, Comparative & International Environmental Law 248 (Ahmad Khan, ‘E-products’) 253. 234 Barsalou and Picard, ‘International Environmental Law’, 901.

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and efficacy.235 Notably the U.S. has not ratified the Convention.236 Given its status as a major plastic exporter its non-ratification has proven problematic (see U.S. chapter for more detail). Lastly, the Basel Convention critically “lacks any real enforcement mechanism”; instead it relies on the parties to enact domestic legislation to implement its provisions.237 The failure to instill proper enforcement mechanisms within the Basel Convention to hold waste traders accountable for environmental damage was described by Ajibo as a fundamental flaw that impacts the attainment of environmental justice in developing countries.238 However, the absence of effective enforcement mechanisms within the Basel Convention is not unique in this respect, as Montgomery argued: “all international law has ‘inadequate’ enforcement mechanisms. Because international law lacks a supranational enforcement authority, it is both imperfect and self-enforcing.”239 The detection of illegal shipments of hazardous waste is left to the individual states, which requires sophisticated monitoring that developing countries are not always equipped to undertake.240 The increasingly globalized nature of plastic production and shifting dynamic of trade requires an evolution of the current regulatory framework for the transboundary movement of plastic pollution. Potential Improvements to the Basel Convention Given the issues identified with both the Convention and the 2019 amendment, there are a number of improvements that can be identified. The Convention’s technical guidelines currently focus on land-based management of waste, though its scope could be expanded to include the marine-based management

Ahmad Khan, ‘E-products’, 253. Parties to the Basel Convention on the Control of Transboundary Movements of Hazardous Waste and their disposal, Secretariat of the Basel Convention, . 237 Zada Lipman and Matthew Ind, ‘The e-waste dilemma: Are international measures and product stewardship schemes a solution?’ (2014) 31 Environmental and Planning Law Journal 223 (Lipman and Ind, ‘The e-waste dilemma’) 227. 238 Kenneth Ajibo, ‘Transboundary Hazardous Wastes and Environmental Justice: Implications for Economically Developing Countries’ (2016) 18(4) Environmental Law Review 267 (Ajibo, ‘Transboundary Hazardous Wastes’) 275. 239 Mark Montgomery, ‘Banning Waste Exports: Much Ado About Nothing’ (1994) 1(2) Buffalo Journal of International Law 197, 199. 240 Lipman, ‘Trade in Hazardous Waste’, 262. 235 236

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of waste.241 The Basel Convention could acknowledge the plastics “lifecycle” concept and further encourage recycling over landfill as an option by incorporating it into its text and policies.242 COP members need to concentrate their collective efforts on a comprehensive and unanimous working definition of hazardous waste. Two amendments to the Convention would help to ameliorate plastic pollution. By deleting the term ‘solid plastic waste’ from Annex IX and adding a new category of plastic waste under Annex II,243 states could no longer trade “green” waste because they classified it as non-hazardous. States export plastic waste would be obliged to receive written consent before importing and transiting to prospective countries.244 Importing countries are generally developing states and such a change would render them better informed of the plastic waste they have consented to accept. This change would hopefully see less plastic wastes sent to countries that cannot manage unrecyclable or contaminated wastes in an environmentally sound way. Such a change would need to be bolstered by additional funding. These suggestions will require additional funding, to comply improved regulation, and to build their capacity to an appropriate level.245 To that end, the Basel Convention delegates should allow states, particularly developing states to have access to funding, such as the Plastics Fund and the Global Environmental Facility (GEF).246 The Plastics Fund and the GEF are stand-alone financial mechanisms that aid developing countries to address global environmental problems.247 248 Lastly, domestic enforcement is and should continue to be the central forum for environmental justice under the Basel Convention. The effectiveness of this enforcement mechanism in less developed countries could be further bol241 Nils Simon and Maro Luisa Schulte, ‘Stopping Global Plastic Pollution: The Case for an International Convention’ (2017) 43 Publication Series Ecology 1 (Simon and Schulte, ‘Stopping Global Plastic Pollution’) 26. 242 Raubenheimer and McIlgorm, ‘Can the Basel and Stockholm Conventions provide a global framework?’. 243 Giulia Carlini, ‘One small edit for a legal text, one giant leap for addressing plastic pollution: A new plastic waste proposal for the Basel Convention’, Center for International Environmental Law (30 August 2018) . 244 Ibid. 245 Simon and Schulte, ‘Stopping Global Plastic Pollution’, 44; Raubenheimer and McIlgorm, ‘Can the Basel and Stockholm Conventions provide a global framework?’, 288. 246 Kirk and Popattanachai, ‘Marine plastics’, 233. 247 Donald M Goldberg, ‘The Montreal Protocol Multilateral Fund: A Model for the Framework Convention on Climate Change’ (1993) 16 International Environmental Report 233, 233. 248 Kirk and Popattanachai, ‘Marine plastics’, 233.

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stered by the parties promoting and investing in the administrative structures which are able to implement sound environmental policies and regulation. The regional Malabo Protocol and the imposition of prison sentences, fines, and seizure of (unlawfully acquired) property provides some theoretical insight into possible enforcement mechanisms that could be adopted as enforcement mechanisms by state members.249 The Basel Convention, combined with the Stockholm Convention has potentially the greatest applicability to the management of plastics at the international level. Together, their coordinated operation could potentially ameliorate the impact of the plastic lifecycle by regulating both the POPs generated during the manufacturing process as well as limiting the international plastic waste trade.250 Both instruments have a high level of international participation, furthering their capacity to global management of the hazards posed by plastic if their Member States choose to act.251 The Basel Convention provides a clear vision for international governance of hazardous waste, see the preamble expressing that, “the most effective way of protecting human health and the environment from the dangers posed by [hazardous and other] wastes is the reduction of their generation to a minimum in terms of quantity and/or hazard potential.”252

OTHER RELEVANT SOFT LAW INSTRUMENTS AND APPROACHES Several binding instruments that have a primary purpose in the protection of biodiversity253 or specific species254 may be applicable to marine plastic debris, there are a number of non-binding “soft law” instruments, strategies and action plans regarding plastic that have been adopted by the international community.255

Sirleaf, ‘Not Your Dumping Ground’, 355. Raubenheimer and McIlgorm, ‘Can the Basel and Stockholm Conventions provide a global framework?’. 251 The Basel Convention has 186 Parties and the Stockholm Convention has 181 Parties (both including the EU). 252 Basel Convention, Preamble. 253 Convention on Biological Diversity (adopted 5 June 1992, entered into force 29 December 1993) 1760 UNTS 79 (CBD). 254 United Nations Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (adopted 4 August 1995, entered into force 11 December 2001) 2167 UNTS 88. 255 Carlini and Kleine, ‘Advancing the international regulation’, 236. 249 250

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The Global Programme of Action for the Protection of the Marine Environment from Land-based Activities The Global Programme of Action for the Protection of the Marine Environment from Land-based Activities (GPA)256 was crafted in 1995 and encourages states to develop and review “national actions programmes … on the basis of national priorities and strategies”.257 Supported by regular Intergovernmental Reviews (IGRs), the GPA has led to the establishment of measures such as the Global Initiative on Marine Litter258 and the Manila Declaration,259 both of which encouraged the improved understanding and monitoring of the issue.260 The GPA adopts an integrated coastal management (ICM) framework and the ecosystem-based approach, as well as the integrated coastal and river basin management approach (ICARM) to the issue of marine litter. It also adopts a multi-layered approach by providing an outline for actions to be taken for land-based sources of marine pollution at three different levels: the national level, the regional level through cooperative action, and the international level.261 Importantly, the GPA identifies specific sources of land-based pollution for international cooperation including wastewater treatment, persistent organic pollutants, sewage, sediments and litter and provides recommended approaches for each category.262 Plastic is specifically mentioned in the sewage and litter categories. Problematically, there is no system in place that monitors the progress of these programmes, nor ensures they are developed and implemented by states.263 Consequently, when the UNEP Secretariat surveyed states on the status of their plans, less than one third of the 108 governments

256 UNEP, ‘Global Programme of Action for the Protection of the Marine Environment from Land-based Activities’ UN Doc UNEP(OCA)/LBA/IG.27 (5 December 1995) (GPA). 257 Ibid. 258 UNEP, ‘Report on the Second Intergovernmental Review Meeting on the Implementation of the Global Programme of Action for the Protection of the Marine Environment from Land-based Activities’ UN Doc UNEP/GPA/IGR.3/2 (9 November 2011) paras 39–41. 259 ‘Manila Declaration on Furthering the Implementation of the Global Programme of Action for the Protection of the Marine Environment from Land-based Activities’ in UNEP Ibid Annex. 260 Kirk and Popattanachai, ‘Marine plastics’, 224. 261 GPA. 262 Ibid. 263 Hugo, ‘The case for a treaty on marine plastic pollution’, 12.

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that supported the original Washington Declaration responded indicating that uptake is minimal.264 The Honolulu Strategy The Honolulu Strategy265 was one of the key outcomes of the Fifth International Marine Debris Conference (5IMDC) held in Honolulu, Hawaii, 20–25 March 2011.266 At the meeting 440 participants representing 38 states, research bodies, scientists, corporations and trade officials met to craft the strategy.267 The United Nations Environment Programme and National Oceanic and Atmospheric Administration (NOAA) Marine Debris Programme provided the technical and financial support throughout its development.268 Monica Medina, NOAA’s Principal Deputy Undersecretary for Oceans and Atmosphere argued: “This conference comes at a critical time for our world. The oceans and coasts are facing a multitude of stressors, including marine debris, that lead to consequences that have both ecosystem and economic impacts. It is vitally important to bring together people committed to these issues to share ideas, develop partnerships and move us all a step closer to the changes that are badly needed for our oceans and coasts.”269 The participants agreed to what became known as The Honolulu Commitment. It set out a cross-sectoral approach to help reduce marine debris and ameliorate the damage to the environment and human health. It encouraged the sharing of technical, legal and market-based solutions to reduce marine litter, improve local and regional knowledge of the scale and impact of the issue and advocate waste management improvements globally. It was designed to be the first step in the creation of a comprehensive global platform for the prevention, reduction and management of marine debris entitled The Honolulu Strategy.270 The

Ibid. UNEP and National Oceanic Atmospheric Administration (NOAA), ‘The Honolulu Strategy: A Global Framework for Prevention and Management of Marine Debris’ (25 March 2011). 266 See . 267 See . 268 The Honolulu Strategy: A global framework for prevention and management of marine debris, see (The Honolulu Strategy). 269 Fabiano Barretto, ‘The Honolulu Commitment’, Global News (29 March 2011) . 270 See . 264 265

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Strategy was finalized after the conference with the aim to provide a strategic framework for coordinated action plans designed to prevent and/or ameliorate sources of marine debris.271 That Strategy established a global framework to improve cooperation of international efforts to prevent marine debris (including plastic) from entering oceans. The Strategy provides a results-oriented framework for global collaboration to address marine debris and its human, economic and ecological impacts including specific goals to reduce land and sea-based sources of marine litter and the impact of existing plastics in the environment.272 The framework had three goals273 and associated strategies274 designed to minimize the size and impact of marine debris from land-based and ocean-based sources as well as marine debris accumulations.275 As a framework document it does not override existing activities at the domestic level but rather is designed to facilitate improved collaboration and coordination between global stakeholders concerned with marine debris.276 The Strategy was designed to operate as a planning tool for marine debris programmes and projects as well as a “common frame of reference for collaboration and sharing best practices and lesson learned.”277 However, the authors deemed target-setting not appropriate leaving it to local, regional, or state levels to set their own targets based on their perceived needs and capabilities.278 While its primary objective is to reduce marine litter, it has been criticized for lacking tangible targets and timeframes regarding pollution reduction.279 Ibid. UNEP and the National Oceanic and Atmospheric Administration, The Honolulu Strategy: A Global Framework for Prevention and Management of Marine Debris (25 March 2011), 2 . 273 The three goals were: “Reduced amount and impact of land-based sources of marine debris introduced into the sea; Reduced amount and impact of sea-based sources of marine debris, including solid waste; lost cargo; abandoned, lost, or otherwise discarded fishing gear (ALDFG); and abandoned vessels, introduced into the sea; and Reduced amount and impact of accumulated marine debris on shorelines, in benthic habitats, and in pelagic waters.” 274 Including education and outreach; implementing best practice, strengthening domestic legislation; improve the regulatory framework; build capacity to monitor and enforce; create appropriate regional, national, and local mechanisms to facilitate removal of marine debris and conduct regular cleanups. 275 See . 276 The Honolulu Strategy. 277 See . 278 The Honolulu Strategy. 279 Karen Raubenheimer, Alistair McIlgorm and Nilufer Oral, 'Towards an improved international framework to govern the life cycle of plastics' (2018) 27(3) Review of European, Comparative & International Environmental Law 210, 214. 271 272

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Clean Seas Campaign In February 2017, the UN declared “war on ocean plastic” launching the “#CleanSeas” campaign.280 The programme is designed to harness individual efforts to create change in national and global laws on marine plastic pollution. It asks global citizens to reduce their plastic footprint, call for their right to a healthy environment to be recognized and utilize the hashtags #BeatPlasticPollution for #CleanSeas.281 The aim of the campaign was to engage states, global society and the private sector to combat marine plastic litter. It is envisaged as a five-year campaign targeting the production and consumption of single-use plastic. Since its inception it has developed into a large global campaign with national commitments from 60 states comprising more than 60% of the planet’s coastlines. It has inspired states to pass plastic reduction policies, encouraging industry to minimize plastic packaging and redesign products, and motivated consumers to change their purchasing habits while also asking more of governments and corporations.282 Almost 90,000 people have taken the #CleanSeas pledge to eradicate single-use plastics and microbeads from their daily lives. People are cleaning beaches, changing their own behaviours by not using plastic and demanding the removal of plastic cups or single-use bottles from their workplaces. States have also agreed to create marine reserves or adopt domestic plans on recycling and waste management, e.g. Indonesia has committed to reduce plastic waste by 70% by 2030; Kenya, Jordan, Madagascar, Chile and France have banned or pledged to ban single-use or non-biodegradable plastic bags and Israel aims to have 70% of its beaches clean 70% of the year while banning certain classifications of plastic bags. The #CleanSeas campaign monitors state promises while seeking to get more states to agree to such actions while engaging the private sector (acknowledged as critical to any programme’s success) that can alter consumer habits and product design.283

280 UNEP, UN Declares War on Ocean Plastic’, UN Environment (23 February 2017) . 281 UNEP, ‘Clean Seas Campaign promotes the right to a healthy environment, including plastic-free oceans’ (9 June 2021) . 282 See . 283 UNEP, ‘One year after the launch of #CleanSeas, the tide is turning’ (30 April 2018) .

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G20 Action Plan on Marine Litter The Group of Twenty (G20) created the “G20 Action Plan on Marine Litter,” with the aim of creating, “the tools to reduce marine litter have to be as diverse as the challenge of marine litter itself.”284 They recognized the urgency of the issue and have decided to work together to promote and implement measures at the local, state, and regional levels to prevent and reduce marine litter. The members realized they needed work on land- and sea-based sources of marine litter and pledged to working on the issue in accordance with state circumstances. They further committed to preventing and substantially reducing marine litter by 2025 to realize 2030 Agenda for Sustainable Development and its Sustainable Development Goals.285 To achieve these laudable aims the G20 created a voluntary Global Network of the Committed (GNC). This is a platform that aims to address the issue of marine litter and is linked to the UNEP´s Global Partnership on Marine Litter (GPML). It is designed to offer and secure exchange, dissemination and transfer information, standards, experiences and knowledge on the issue.286 Ocean Plastic Charter In June 2018, in the absence of a global binding instrument on plastic pollution, five members of the G7 (Canada, France, Germany, Italy, the United Kingdom plus the European Union) signed Ocean Plastics Charter in Charlevoix, Canada.287 The U.S. and Japan were the only G7 states that did not sign.288 The G7 had focused on the issue of marine pollution at previous meetings but this was the first time they had focused on the specific issue of marine plastic pol-

284 G20, ‘G20 Action Plan on Marine Litter’ (8 July 2017) . 285 G20 Action Plan on Marine Litter. 286 See . 287 The Ocean Plastics Charter (signed in Charlevoix, Canada, June 2018) . (The Ocean Plastics Charter). The Charter was eventually signed by the following states: Canada, European Union, France, Germany, Italy, United Kingdom, Jamaica, Kenya, Mexico, Norway, Republic of the Marshall Islands, Netherlands, Senegal, Nauru, Palau, Cabo Verde, Myanmar, Samoa and businesses signing included: Ikea, Nestle, Coca Cola, Volva and Walmart. Plastic Action Centre, G7 Ocean Plastics Charter, G7 Meeting Charlevoix, . 288 Carly Cassella, ‘The US And Japan Are The Only G7 Nations That Refuse to Tackle Plastic Pollution’, Science Alert (13 June 2018) (Cassella, ‘The US And Japan’).

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lution. The Charter is an example of “minilateralism” where a small number of states come together to resolve an issue rather than through formal, larger, United Nations meetings.289 The Charter is a non-binding voluntary agreement that outlines concrete actions to eradicate plastic pollution, and recognizes the need for urgent action to address the devastating impacts of marine litter on the health and sustainability of our oceans, seas, coastal communities and ecosystems.290 The Charter aims to “bring together leading governments, businesses and civil society organizations to support its objectives and commit to taking action to move toward a more resource efficient and sustainable approach to the management of plastics.”291 The Charter requires 23 actions across five core areas: “(1) Sustainable design, production, and after-use markets; (2) Collection, management, and other systems and infrastructure; (3) Sustainable lifestyles and education; (4) research, innovation, and new technologies; and (5) Coastal and shoreline action.”292 The UK, Canada, France, Germany, Italy and the European Union agreed to increase plastic recycling by 55% while also seeking to use 100% reusable, recyclable or recoverable plastics by 2030.293 The states further agreed: to take a lifecycle approach to plastics stewardship on land and at sea [and] to avoid unnecessary use of plastics and prevent waste, and to ensure that plastics are designed for recovery, reuse, recycling and end-of-life management to prevent waste through various policy measures.294

Other key commitments included working with industry and lower levels of government to recycle and reuse at least 55% of plastic packaging by 2030 and recover 100% of all plastics by 2040; invigorate global action and investments (through public-private funding and capacity development) to address marine litter; promote research and new technologies to remove plastics and microplastics from waste water and sewage; create innovative plastic materials and alternatives not harmful to the environment; implement measures such as

289 Marcus Haward, ‘Ocean Plastics Charter’ in Jean-Frederic Morin and Amandine Orsini (eds), Essential Concepts of Global Environmental Governance (2nd edn, Routledge, 2020) (Haward, ‘Ocean Plastics Charter’), 172. 290 The Ocean Plastics Charter, art 1(a and d). 291 Government of Canada, Ocean Plastics Charter . 292 Haward, ‘Ocean Plastics Charter’, 172. 293 Cassella, ‘The US And Japan’. 294 Haward, ‘Ocean Plastics Charter’, 172.

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market-based instruments that prevent plastics from entering the oceans; and bolster labelling standards so consumers can make sustainable decisions on plastics product usage.295 The Charter focuses on information sharing, monitoring, and suasion between state and non-state actors. These so-called “sunshine methods” allow states to foster compliance while avoiding the limitations of hard law instruments.296 Since its creation, another 16 states and 63 businesses and organizations have endorsed the Charter.297 The G20 Osaka Blue Ocean Vision The G20 Action Plan on Marine Litter was adopted at the G20 Hamburg Summit in 2017 which laid the foundation for Member States to address the problem of marine litter.298 The Osaka Blue Ocean Vision was established in June 2019 by G20 leaders as part of efforts to implement the G20 Action Plan on Marine Litter.299 It also included goals to reduce additional marine plastic litter to zero by 2050 through enhanced waste management systems and innovation.300 While this vision is supported by 86 countries and regions, it is voluntary in nature,301 and its 2050 timeframe may not provide strong enough signals to effect short- term change. Japan, with the goal of realizing the Osaka Blue Ocean Vision, supported developing states’ efforts to deal with the issue of marine plastic. To this end, Japan created the “MARINE Initiative” to increase their capacity building and infrastructure development in the area of waste management. The initiative focused on the issues of management of wastes; recovery of marine litter; innovation; and empowerment. These goals were to be supported by encouraging international cooperation and assistance through international organizations to develop capacities and training schemes; international operations by Japanese Companies, NGOs, and local governments to advance international cooperation, facilitate the export of waste management facilities and technol295 Plastic Action Centre, G7 Ocean Plastics Charter, G7 Meeting Charlevoix . 296 Haward, ‘Ocean Plastics Charter’, 172. 297 Ibid. 298 See . 299 Osaka Blue Ocean Vision, About Us . 300 Ibid. 301 Stephen Fletcher et al, Policy options to eliminate additional marine plastic litter by 2050 under the G20 Osaka Blue Ocean Vision (UNEP Report, 2021) 17 , 39.

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ogies and provide assistance to emerging Asian states; the dissemination and sharing of best practices gleaned from the experiences of the Japanese public and private sectors concerning waste management, recovery of marine litter and innovation; advance sharing knowledge about measures to combat marine plastic litter with ASEAN member countries, and lastly, create a Regional Knowledge Centre on Marine Plastic Debris.302 The Osaka Blue Ocean Vision aim of net-zero marine plastic litter entering the ocean by 2050 is laudable. As Sunami notes the Osaka Blue Ocean Vision is a “welcome step forward, [but] the G20 nations need to do more than just share the common goal under the vision and implement better ways to manage plastic waste.”303 Rather a global mechanism is required that effectively monitors state’s progress while also quickly creating alternative materials for plastics.304 However, if these goals are to be realized, the G20 states need to make work on marine plastic pollution a priority; coordinate marine plastic litter reduction policies effectively; adopt global policy targets but delivered nationally; policies that reduce marine plastic litter, e.g. linear to circular plastic production and consumption by designing out waste should be developed, shared and scaled up immediately; transition quickly to a circular plastics economy; overcome the significant knowledge gap on the effectiveness of marine plastic litter policies; fully regulate the international plastics trade; and pass COVID-19 recovery stimulus packages that bolster the Osaka Blue Ocean Vision.305

CONCLUSION Dauvergne observes trenchantly that, “global governance of marine [and terrestrial] plastic pollution remains highly uneven.”306 Current legal developments relating to the regulation of plastics in global commons spaces are either focused on building understanding and monitoring the situation, or alternatively concerned with reducing the introduction of plastic pollution to the environment.307 As such, Kirk and Popattanachai note that the application of 302 Japan’s “MARINE Initiative” toward Realization of the Osaka Blue Ocean Vision . 303 Atsushi Sunami, ‘A vision for protecting the worlds oceans’, Japan Times (16 July 2019) . 304 Ibid. 305 Policy Options to Eliminate Additional Marine Plastic Litter By 2050 under the G20 Osaka Blue Ocean Vision . 306 Dauvergne, ‘Why is global governance of plastic failing?’, 25. 307 Kirk and Popattanachai, ‘Marine plastics’, 227.

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different standards coupled with divergence in membership across instruments and plans has encouraged uncoordinated global actions that have failed to stem the problem of plastic pollution in the global environment.308 States have become parties to international environmental law instruments such as the MARPOL Convention, UNCLOS and the London Convention all of which could play a role in minimizing or restricting the disposal of plastic waste into sea but have to date, failed too.309 Problematically, these instruments have proven limited to date because they only address the end of life disposal of plastics; they do not address other phases of the plastic’s life cycle such as the ‘extraction of raw materials, design and use phases of plastic polymers and additives’.310 Besides the UNCLOS, MARPOL’s and the London Convention’s focus on the end of life phase is further limited because they do not address the prevention of land-based sources which constitute 80% of maritime plastic pollution.311 The Basel Convention’s language regarding plastic is both lacking clear definitions, e.g. hazardous waste, and employs open-ended language in the provisions relating to plastics.312 Its provisions as currently written are too vague to have any authority in regulating how nations handle their plastic waste.313 Further, it does not offer any solutions to the “upstream” production of plastic as a cause of marine plastic pollution.314 It has struggled to enforce its directives relying on states to enact and implement national legislation to implement its provisions.315 This flaw in failing to instill proper enforcement mechanisms for the ongoing environmental harm

Ibid. United Nations Convention on the Law of the Sea, opened for signature 4 June 1992, 1833 UNTS 396 (entered into force 16 November 1994); International Convention for the Prevention of Pollution from Ships, 1973 as modified by the Protocol of 1978, opened for signature 17 February 1973, 1340 UNTS 61 (entered into force 2 October 1983) annex V; International Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, opened for signature 29 December 1972, 1046 UNTS 120 (entered into force 29 December 1972). 310 Nils Simon and Maro Luisa Schulte, Strengthening Plastic Governance: Towards a New Global Convention (Adelphi 2017) (Simon and Schulte, Strengthening Plastic Governance) 29. 311 Monroe, ‘Tailoring Product Stewardship’, 220. 312 Silns and Schulte, Stopping Global Plastic Pollution, 26; Raubenheimer and McIlgorm, ‘Can the Basel and Stockholm Conventions provide a global framework?, 287. 313 Raubenheimer and McIlgorm, ‘Can the Basel and Stockholm Conventions provide a global framework?’, 287. 314 Ahmad Khan, ‘Clearly hazardous, obscurely regulated’, 205. 315 Lipman and Ind, ‘The e-waste dilemma’, 227. 308 309

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caused by improperly regulated waste traders prevents it being able to effectively combat the ongoing plastic waste trade in its current configuration.316 As noted previously, while the Norwegian plastic amendment is an impressive accomplishment in this space it does not overcome the issues inherent in its current iteration. However, the amendment has no overall reduction targets, clear reporting obligations or effective monitoring processes that can tell whether the plastic waste trade is being limited.317 The Stockholm Convention does not regulate all chemical additives used in plastic products. It provides protection only for a limited number of persistent organic pollutants used in the manufacture of plastics. This instrument is not effective in dealing with plastic pollution or even in keeping up with industry trends due to the rapid innovation of plastics and the length of time to amend the Convention.318 Despite the many voluntary frameworks that address plastic pollution, none have emerged as a suitable forum to tackle this issue, nor do any have a mandate or means to do so.319 Further, the proliferation of soft-law rules in the marine space currently suffer from the usual problem that the cost of violating such non-binding agreements is non-existent for states leading to extremely limited efficacy.320 Therefore, calls for a new international instrument dealing with the marine pollution are becoming more frequent and have been considered at the United Nations level.321 Clearly, as has been demonstrated, harmonizing existing international laws, rules and norms regarding international plastic pollution would foster a more robust and effective regime.322 Utilizing or modifying existing international legal structures is unlikely to offer the comprehensive solution required to address current and future global plastic pollution levels. Despite the global

Ajibo, ‘Transboundary Hazardous Wastes’, 275. Ibid; Ahmad Khan, ‘Clearly hazardous, obscurely regulated’, 204; Raubenheimer and Urho, ‘Rethinking global governance of plastics’, 5. 318 United Nations Environment Assembly of the United Nations Environment Programme, Third session Nairobi, 4–6 December 2017 Combating marine plastic litter and microplastics: An assessment of the effectiveness of relevant international, regional and subregional governance strategies and approaches (UNEP/EA.3/INF/5), 148. 319 Simon and Schulte, Strengthening Plastic Governance, 3. 320 Gianluca Ferraro and Pierre Failler, ‘Governing plastic pollution in the oceans: Institutional challenges and areas for action’ (2020) 112 Environmental Science & Policy 453 (Ferraro and Failler, ‘Governing plastic pollution’) 454. 321 See for example, Simon and Schulte, Strengthening Plastic Governance; and Raubenheimer cited above. 322 Ferraro and Failler, ‘Governing plastic pollution’, 455. 316 317

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scope of the other international environmental instruments considered here – the London Convention, MARPOL, UNCLOS, the Stockholm Convention and the Basel Convention – none of these instruments were designed to focus on marine or terrestrial plastic pollution beyond state borders. At present, no global agreement exists to specifically prevent plastic litter and microplastics from entering the environment in general and marine environment in particular, or provide a lifecycle approach to management of plastics, which would be in line with the circular economy framework. Rather each Convention seeks to resolve its own particular cooperation challenge, with plastic pollution at best, an afterthought.323 This necessitates considering the viability of a new legally binding instrument on the global use and management of plastic which will be considered in the next chapter.

Hugo, ‘The case for a treaty on marine plastic pollution’, 12.

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7. Crafting a global plastics treaty INTRODUCTION The limitations of the existing regulatory responses to global plastic pollution, as demonstrated in the previous chapters necessitate the adoption of a common binding framework on plastics that has the capacity to coordinate and govern the existing fragmented system and varied standards across international environmental law instruments. The transnational character of global plastic pollution necessitates a coordinated global response, best realized by a global treaty on plastics that recognizes the joint responsibility of states for the millions of tonnes of plastic which pollute the planet, particularly the oceans every year. The creation of such a treaty has the potential to serve as a framework for catalysing joint action and the pooling of resources, as well as prompting the more effective realization of national efforts on closing the gap between plastic production levels and waste collection rates.1 The purpose of this chapter is to critically analyse the current effort of the international community in creating a potential global framework for dealing with plastic waste by UNEA-6 in 2024. It will first outline the stakeholder positions regarding the need and contours of an international plastics instrument necessary to resolve global plastic pollution, both for and against such a document. Then the various negotiation meetings fostered by the UN Environment Assembly (UNEA) on this issue starting in 2014 will be considered as to their effectiveness in providing a “roadmap” for negotiations. Representatives at that meeting highlighted that the threat of marine litter, including plastics and microplastics, was a global issue of pressing concern, given the long period of decay of plastics, their potential for long-distance transport and their tendency to disintegrate into extremely harmful microparticles was an urgent issue that needed to be dealt with.2 It will then scrutinize the role played by the Ad hoc Open-ended Expert Group in driving the negotiating process forward. This section will focus in 1 Torbjorn Graff Hugo, ‘The case for a treaty on marine plastic pollution’ (2018) Norwegian Academy of International Law 13–14. 2 UNEP/E.A.1/10, United Nations Environment Assembly of the UNEP, First Session (Nairobi, 23–27 June 2014), 13.

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particular on the draft resolutions offered by Peru-Rwanda, India and Japan for potential adoption at the 2022 UNEA-5.2 Meeting as a basis for ongoing discussions to create a global plastic treaty. The negotiations culminated in the UNEA-5.2 meeting in Nairobi, Kenya. However, to truly understand the outcome of that conference, the events leading up to it, including the Resumed meeting of the Fifth Open-ended Committee of Permanent Representatives (OECPR) need to be carefully examined. The UNEA 5.2 delegates took a “historic step” towards ending plastic pollution with the adoption of the resolution, End Plastic Pollution: Towards an International Legally Binding Instrument. This resolution will be unpacked in detail and considered for its potential as a template for future global action in this space. The response by stakeholders to the resolution being agreed to will also be sketched out. Then the creation of an Intergovernmental Negotiating Committee process by an ad hoc Open-ended Working Group (OEWG) will be analysed with a focus on the first meeting in Dhaka, Senegal in May 2022. That summit was meant to put forth a timeline and process for negotiations for future Intergovernmental Negotiating Committee (INC) meetings but struggled to do so and the reasons why will be delineated. In the conclusion some thoughts will be offered on the likelihood of the proposed convention meeting its deadline will be proffered.

STAKEHOLDER SUPPORT FOR A PROPOSED GLOBAL PLASTICS TREATY Prior to the UNEA-5.2 meeting being convened, it can be observed that there had been a significant and growing appreciation amongst the public, scientific community, some governments, and NGOs for the need for a successful negotiation of a global plastics treaty.3

3 William Verity, University of Wollongong, ‘Historic UN Agreement to Fight Plastic Pollution’ (Media Release, 8 March 2022) (Verity, ‘Historic UN Agreement to Fight Plastic Pollution’). For example, a survey conducted by the Plastic Free Foundation in collaboration with the World Wide Fund For Nature (WWF) in late 2021 involving more than 20,000 adults in 28 countries found that over 90% of participants considered it important to have a global treaty to combat plastic pollution, illustrating that there “is a clear call by people from all corners of the world that they want their governments to act now” as stated by Rebecca Prince-Ruiz, Founder and Executive Director of Plastic Free Foundation. Ms Prince-Ruiz also noted that globally approximately 140 million people participated in Plastic Free July, indicating a growing concern amongst the community about the impacts of plastic pollution. World Wide Fund for Nature, ‘Global Survey Sees Nearly Nine in 10 People Supporting a UN Plastic Pollution Treaty but Will Governments Follow?’ (Press Release, 22

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NGOs and environmental groups have campaigned strongly in recent years for an ambitious plastics treaty that moves beyond the emphasis on marine plastic pollution and instead incorporates a lifecycle approach.4 Environmental groups had also called for a clear and strong global standard for plastics creation and usage, which could incentivize nations to adhere to common rules and regulations, whilst penalizing environmentally harmful products and practices.5 However, there has also been resistance to such a convention from industry members, bodies, and large plastic producing nations, specifically concerning potential restrictions being imposed on plastic production.6 It is clearly understood that any proposed treaty which imposes restrictions on plastic production, use or design would adversely affect the oil and chemical companies which currently manufacture plastic.7

February 2022) (WWF ‘Global Survey Sees Nearly Nine in 10 People Supporting a UN Plastic Pollution Treaty’). 4 Joe McCarthy, ‘First-Ever Global Plastic Pollution Treaty’, Global Citizen (online, 2 March 2022) (McCarthy, ‘First-Ever Global Plastic Pollution Treaty’). 5 Chemicals such as Bisphenol A (BPA) and certain brominated flame retardants, common ingredients in domestic plastic products, are proven endocrine disruptors. Heavy metals such as Antimony (Sb) are proven to cause breast cancer. Plastic incineration releases such chemicals into the natural environment: Claudia Campanale et al, ‘A Detailed Review Study on Potential Effects of Microplastics and Additives of Concern on Human Health’ (2020) 17(4) International Journal of Environment Research and Public Health ; Okunola A Alabi et al, ‘Public and Environmental Health Effects of Plastic Wastes Disposal: A Review’ (2019) 5(1) Journal of Toxicology and Risk Assessment 1, 4. Poor waste management practices include landfill deposits. 80% of plastic waste either accumulates in landfill or the natural environment: Niyitanga Evode et al, ‘Plastic waste and its management strategies for environmental sustainability’ (2021) 4 Case Studies in Chemical and Environmental Engineering ; Helen Briggs, ‘Plastic Pollution: Green Light for “Historic” Treaty’, BBC News (online, 2 March 2022) (Briggs, ‘Green Light for “Historic” Treaty’). 6 John Geddie and Joe Brock, ‘Analysis: Big Oil’s Plastic Boom Threatens UN’s “Historic” Pollution Pact’, Reuters (online, 5 March 2022) (Geddie and Brock, ‘Big Oil’s Plastic Boom Threatens Pact’). 7 ‘United Nations Agrees to Create “Historic” Global Treaty on Plastic Pollution in Landmark Agreement’, ABC News (online, 4 March 2022) (‘United Nations Agrees to Create “Historic” Global Treaty’).

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Hence, whilst many plastic industry members and bodies have publicly supported a plastics treaty, they are opposed to a treaty which would impose restrictions on plastic production,8 despite evidence that plastic producers have known for decades that plastics have a deleterious impact on the environment.9 Rather, industry bodies including America’s Plastic Makers and the International Council of Chemical Associations (ICCA) called for a global agreement that incentivized private business to utilize innovative approaches.10 Furthermore, any industry-favoured treaty would merely focus on downstream measures such as better recycling and waste collection with “a targeted goal to ensure access to proper waste management and eliminate leakage of plastic into the ocean.”11 The statements made by the group are consistent with their public endorsement of the December 2021 Japan draft resolution calling for a global plastic treaty which, “focuses solely on plastic waste on oceans” and waste management and recycling downstreaming measures. They also rejected the Rwanda-Peru draft resolution (2021), which advocated for the operations of plastic industry members to be scrutinized (see later sections on the two resolutions for further details).12

8 John Geddie, ‘At Kenya’s Biggest Dump, Urgent Calls for a Global Plastics Treaty’, Reuters (online, 1 March 2022) (Geddie, ‘At Kenya’s Biggest Dump, Urgent Calls for a Global Plastics Treaty’). 9 Isabella Kaminski, ‘Rush of Lawsuits over Plastic Waste Expected after “Historic” Deal’, The Guardian (online, 10 March 2022) (Kaminski, ‘Rush of Lawsuits over Plastic Waste Expected’). 10 Michael Birnbaum and Min Joo Kim, ‘Plastics Production is Skyrocketing: A New U.N. Treaty Effort Could Cap It’, Washington Post (8 February 2022) (Birnbaum and Kim, ‘Plastics Production is Skyrocketing’). Plastic industry members and bodies have publicly opposed a treaty imposing restrictions on plastic production. For example, Joshua Baca, vice president of the American Chemistry Council (ACC), the trade association for chemical manufacturers outlined that imposing restrictions and regulations on plastic production, “is a very shortsighted approach to take” since regulation will be “difficult to implement” and lead to, “further supply chain disruption.”: Birnbaum and Kim, ‘Plastics Production is Skyrocketing’. 11 Here’s How to Design an Effective Treaty to Curb Plastic Pollution Globally’, Sustainability Times (online, 10 March 2022) (‘How to Design an Effective Treaty’); Geddie and Brock, ‘Big Oil’s Plastic Boom Threatens Pact’. 12 Camilla Hodgson, ‘Manufacturers Lobby to Weaken UN Global Plastics Treaty Proposal’, Financial Times (online, 25 February 2022) (Hodgson, ‘Manufacturers Lobby to Weaken UN Global Plastics Treaty Proposal’).

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In addition to denouncing a putative plastics treaty which targets plastic production, there is evidence that plastics and petrochemical industry members and bodies lobbied governments and big businesses in an underhanded attempt to “dilute and even squash” a treaty,13 especially one which attempts to restrict plastic production.14 Although petrochemical companies including ExxonMobil Corp, Royal Dutch Shell Plc. and Dow Inc. expressed public support for a global agreement targeting plastic waste, a report from Reuters revealed emails, company presentations and interviews that these companies in fact: “devis[ed] strategies to persuade [UNEA-5.2] participants to reject any deal that would limit plastic manufacturing.”15 There is evidence that the American Chemistry Council (ACC) and Plastics Europe (the ACC’s European equivalent), met with governmental officials including the U.S. Environmental Protection Agency (EPA) and State Department ahead of UNEA-5.2 to plead their case promoting the benefits of plastics, and adopted methods including chemical recycling and plastic-to-fuel processes. Such options however, promote plastic production and are deleterious for the environment.16 The ACC also allegedly, “attempt[ed] to forge a coalition of big businesses to help steer treaty discussions away from production restrictions” as indicated by an email sent by the ACC in October 2021.17 However, it should be noted that industry in not monolithic in opposition to a plastics treaty. Companies including Coca-Cola, PepsiCo, Unilever and Nestlé, have committed to EU-mandated targets regarding use of recycled packaging and publicly called for a treaty which imposes restrictions on virgin polymer production and use,18 and which, “creates a common set of rules around plastic and a level playing field for competition.”19

McCarthy, ‘First-Ever Global Plastic Pollution Treaty’. Ibid. 15 John Geddie, Valerie Volcovici and Joe Brock, ‘U.N. Pact May Restrict Plastic Production. Big Oil Aims to Stop It’, Reuters (online, 18 February 2022) . 16 Alejandra Parra and Claire Arkin, ‘The Time for a Global Plastics Treaty is Now’, Revisita de Prensa (2 March 2022) (Parra and Arkin, ‘The Time for a Global Plastics Treaty is Now’). 17 Hodgson, ‘Manufacturers Lobby to Weaken UN Global Plastics Treaty Proposal’. 18 Geddie and Brock, ‘Big Oil’s Plastic Boom Threatens Pact’. 19 Nick Perry, ‘UN Agrees to Create “Historic” Global Treaty on Plastic Trash’, Barron’s (online, 1 March 2022) (Perry, ‘UN Agrees to Create “Historic” Global Treaty on Plastic Trash’). 13 14

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THE ROAD TO THE UNEA 5.2 NEGOTIATIONS The UN push to create a global plastic treaty starts in 2014 and it is critical to understand the role played by the UNEA in “midwifing” a potential convention. At the first Proceedings of the United Nations Environmental Assembly of the United Nations Environment Programme at its First Session (Nairobi, 23-27 June 2014) the UNEA adopted Resolution 1/6 Marine plastic debris and microplastics.20 The Resolution recognized that oceans and marine biodiversity were negatively affected by marine pollution from land and sea-based sources, particularly plastic; this was a rapidly increasing problem with significant risks due to the “inadequate management and disposal of plastic”;21 and acknowledged that it was having a “serious impact” … “on the marine environment, marine ecosystem services, marine natural resources, fisheries, tourism, and the economy, as well as the potential risks to human health.”22 The delegates stressed the urgent need for action to address the challenge of plastic debris and microplastic pollution and requested the Executive Director to undertake a study on the issue focusing on key sources, possible measures, practices and techniques to ameliorate the issue and recommendations for necessary urgent actions. It also called for states and industry, “to promote the more resource-efficient use and sound management of plastics and microplastics” and encouraged governments to undertake “comprehensive action to address the marine plastic debris and microplastic issue.”23 At the 2016 Proceedings of the United Nations Environmental Assembly of the United Nations Environment Programme at its Second Session (Nairobi, 23–27 May 2016) state representatives highlighted the problem of marine pollution, including through microplastics, with one representative drawing attention to the vulnerability of small island developing states to marine pollution.24 The UNEA adopted Resolution 2/11 Marine Plastic Litter and Microplastics (2016).25 It again noted the deleterious effects of marine litter, especially plastic which knowledge of had only increased in the interim (see the 2016 study undertaken as per Resolution 1/6, “Marine plastic debris and microplastics: global lessons and research to inspire action and guide policy change”, on 20 The United Nations Environment Assembly, 23–27 June 2014, hosted by UNEP in Nairobi, Kenya, UNEP/EA.1/Res.6 (2014) Marine Plastic Debris and Microplastics. 21 Ibid, 21. 22 Ibid, 21. 23 Ibid, 22. 24 UNEP/EA.2/19, United Nations Environment Assembly of the UNEP, Second Session (Nairobi, 23–27 May 2016), 22. 25 Ibid, 26.

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marine plastic debris and microplastics.) The Resolution highlighted the First World Ocean Assessment report which detailed the potential threat of nanoplastic waste and the effect of microplastics on marine food chains and the potential risk for the environment and human health; and that marine plastic litter and microplastics is a serious global problem mandating an urgent global response; and, “that measures need to be taken and adapted as appropriate to local, national and regional situations” but that states, despite Resolution 1/6, had not yet done so.26 At the third Proceedings of the United Nations Environmental Assembly of the United Nations Environment Programme at its third session (Nairobi, 2017), the proliferation of plastic products and waste was identified as another issue of growing global significance.27 Plastic wastes, including discarded plastic bags, containers and microplastics, are ubiquitous in even the most remote marine and terrestrial environments. Several representatives said that their countries had banned the manufacture and use of plastic bags or were in the process of doing so and would be extending the ban to other types of plastic products in the future. Marine litter was viewed as a particular priority for action, and several representatives noted their countries’ support for and involvement in such initiatives as the Clean Seas campaign and the Stop Plastic Waste coalition.28 The third UNEA Meeting in 2018 stressed the importance of long-term elimination of marine litter and microplastics into the oceans,29 and urged all stakeholders to accelerate action to prevent and reduce marine pollution of all kinds, with a focus on land-based activities, by 2025.30 However, a number of states were particularly opposed to setting pollution reduction targets, with the U.S., China and India exerting pressure at the third UNEA to ensure that any resolution did not include binding targets.31 Member States also acknowledged the report: Combating Marine Plastic Litter and Microplastics: An Assessment of the Effectiveness of Relevant International, Regional and Subregional Governance Strategies and Ibid, 22–26. UNEP/EA.3/2, United Nations Environment Assembly of the UNEP, Third Session (Nairobi, 4–6 December 2017), 11. 28 Ibid. 29 United Nations Environment Assembly of the United Nations Environment Programme, 3/7. Resolution on marine litter and microplastics, 3rd sess, UN Doc UNEP/EA.3/Res.7 (30 January 2018) 2 [1]. 30 Ibid, 2 [2]. 31 Malcolm Hudson, ‘Ocean plastic: clean it up, but avoid the mistakes of global climate policy’, The Conversation (online, 12 December 2017) . 26 27

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Approaches prepared as per Resolution 2/11. This comprehensive report recommended states develop and integrate marine litter action plans, including the monitoring of microplastics; implementing global industry-led self-regulated guidelines, and global labelling and certification schemes; better national reporting, methodologies and information sharing; incorporating environmentally sound waste management and waste prevention into national development strategies with the goal of reducing marine plastic litter and microplastics; conducting research into the risks of human consumption of microplastics via marine species; and importantly, creating an international body to coordinate these actions.32 The UNEA Report also proposed two main potential solutions to plastic pollution crisis to be considered. The first option is to combat plastic litter using the existing framework of international, regional and sub-regional environmental treaties and agreements. However, the report acknowledges that the current framework is very fragmented and has major gaps. A high level of coordination and expansion of the scope of these different instruments will be required to reduce the gaps, which might be very difficult to attain. The second option would see the creation of a compulsory convention on planetary plastic waste.33 While there were some hopes that the international community would opt for the second option and come up with a global binding agreement on plastic waste during the third UNEA, the states opted for another non-binding resolution with no targets, which only tackles marine litter instead: the UN Resolution on Marine Litter and Microplastics.34 The Resolution reaffirmed the UNGA resolution 70/1 (25 September 2015), which adopted the 2030 Agenda for Sustainable Development and highlighted Sustainable Development Goal 14 and its target 14.1. It seeks by 2025, to: “prevent and significantly reduce

32 United Nations Environment Assembly of the United Nations Environment Programme, Nairobi, 29–31 May 2018, 17. 33 United Nations Environment Assembly of the United Nations Environment Programme, Combating Marine Plastic Litter and Microplastics: An Assessment of the Effectiveness of Relevant International, Regional and Subregional Governance Strategies and Approaches (Third session Nairobi, 4–6 December 2017, Items 8 and 5 of the provisional agenda (UNEP/EA.3/INF/5) 5 October 2017), 74. Other studies have also shown that the existing international framework might not be adequate to deal with the problem effectively, as plastic and microplastic litter is not a primary objective of any of the existing instruments. See also Karen Raubenheimer, Towards an Improved Framework to Prevent Marine Plastic Debris (Australian National Centre for Ocean Resources and Security (ANCORS), University of Wollongong, Australia, 2016). 34 United Nations Environment Assembly of the United Nations Environment Programme, Resolution on Marine Litter and Microplastics, UNEP/EA.3/L.20, Third Session, 4–6 December 2017.

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marine pollution of all kinds, in particular from land-based activities, including marine debris and nutrient pollution”.35 It also acknowledged that preventative action was essential but noted the challenges facing stakeholders given increased production and consumption. It also noted that all stakeholders are needed to prevent and reducing marine litter and microplastics, through mechanisms including information sharing; awareness-raising; and creating environmentally sound technologies, capacity-building, and clean-up measures.36 At the fourth session of the United Nations Environmental Assembly of the United Nations Environment Programme (Nairobi, 11–15 March 2019) the European Union pledged to work constructively to help the UNEA fulfil its mandate of providing global environmental leadership, including through an ambitious outcome document (Resolution 5/14) that reflected the urgency, underlined by the best-available science, of addressing climate change and plastics effectively.37 Addressing plastic waste through the creation of demand for substitutes for plastics; and elaborating national road maps that stressed the need to better regulate plastic and plastic waste and implement sophisticated plastic waste tracking systems were both key issues identified by the Forum of Ministers and Environment Authorities of the Asia-Pacific.38 Representatives of United Nations entities suggested innovative solutions such as a national Sustainable Development Goal innovation laboratory; “green deals” to stimulate engagement of private partners in the circular economy and incentives for green businesses that recycle waste and reduce the production of wasteful products, such as single-use plastic bags.39 Plastic and microplastic wastes were also highlighted as particularly relevant to sustainable consumption and production, given the fact that it had become a major area of global concern in recent years. Marine plastic pollution is abundant and is threatening the biodiversity of the world’s oceans. Some representatives also began to highlight the need for a new international convention or framework on marine litter and microplastics.40

Ibid, art 2. Ibid. 37 United Nations Environment Assembly of the United Nations Environment Programme, Proceedings of the United Nations Environmental Assembly at its fourth session (Nairobi, 11–15 March 2019), 4 (UNEA, ‘Proceedings’). See UNEA, 30 May–1 June 2022, hosted by UNEP in Nairobi, Kenya, UNEP/EA.5/Res.14 (2022) Resolution 5/14 entitled “End Plastic Pollution: Towards an International Legally Binding Instrument” 4. 38 UNEA, ‘Proceedings’, 5. 39 Ibid, 11. 40 Ibid. 35 36

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The fourth session of the United Nations Environmental Assembly of the United Nations Environment Programme was the first session to mention and discuss circular economy as one of the approaches to combat plastic pollution. Specifically, the European Union representative highlighted that greater resource efficiency and a move towards a circular economy were needed to achieve the Sustainable Development Goals.41 Likewise, French President Emmanuel Macron stated that a radical change in productive systems and the creation of a truly circular economy that avoided waste and mobilized action to tackle major pollutants is required.42 In fact, one of the main themes of the session was the severe environmental challenge posed by unsustainable consumption and production, and the urgent need for innovative solutions, including the shift towards the circular economy.43 At the national level it should be noted, many countries had introduced, or were introducing, legislative controls on single-use plastic bags and other plastic utensils, promoting the production and use of environmentally friendly alternatives, and prioritizing media campaigns to promote being plastics-free.44 However, the representative of the United States said that while his government recognized the need for urgent action to reduce the release of plastics into the environment and was pleased to see the problem of plastic pollution, particularly in the marine environment, being taken so seriously, it disassociated itself from the language used in the draft ministerial declaration of the high-level segment of the fourth session of the United Nations Environment Assembly.45 While exactly how the U.S. so disassociated itself is unclear, the language of the Declaration, emphasizing “[improving] national resource management with integrated full life-cycle approaches” in support of “resources-efficient and low-carbon economies” was somewhat at odds with the U.S. “[belief] that the declaration should cover all types of emissions”, rather than only “carbon”.46 The UNEA adopted Resolution 4/6 Marine plastic litter and microplastics47 and Resolution 4/9 Addressing single-use plastic products pollution.48 Resolution 4/6 was concerned that plastic litter and microplastics, were Ibid, 4 [20]. Ibid, 8 [44]. 43 Ibid, 10–11 [55–60]. 44 Ibid, 12. 45 Ibid, 14. 46 UNEA, 11–15 March 2019, hosted by UNEP in Nairobi, Kenya, UNEP. EA.4.HLS.1 (2019) Ministerial declaration of the United Nations Environment Assembly at its fourth session: Innovative solutions for environmental challenges and sustainable consumption and production 2. UNEA, ‘Proceedings’ 14. 47 UNEA, ‘Proceedings’, 15. 48 Ibid, 18. 41 42

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a serious global environmental problem at a global scale, negatively affecting marine biodiversity, ecosystems and animal well-being; microplastics were being found along the food chain potentially negatively affect human health; states needed to eliminate litter and microplastics entering the oceans by preventing and reducing marine litter (including plastic and microplastics) for the 2030 Agenda for Sustainable Development and the Sustainable Development Goals; and focused on the importance of “sustainable management of plastics throughout their life cycle to increase sustainable consumption and production patterns, including but not limited to the circular economy and other sustainable economic models, and the importance of environmentally sound waste management, resource efficiency, and the ‘three Rs’ (reduce, reuse, recycle).”49 Resolution 4/950 asked states to create and implement national or regional actions to develop environmentally friendly alternatives (with full lifecycle implications considered) and ameliorate the environmental impact of single-use plastic products; improve waste management processes and legislation; states should partner with industry to develop environmentally friendly alternatives to single-use plastic products; states and industry should create more environmental education on the costs of plastic pollution, develop resource-efficient design and production, and proper plastic management across their lifecycle; and all stakeholders should cooperate in promoting scientific research and “fast tracking” the development of environmentally sound alternatives to single-use plastic products.51

AD-HOC OPEN-ENDED EXPERT GROUP ON MARINE LITTER AND MICROPLASTICS (AHOEG) An Ad-Hoc Open-Ended Expert Group on Marine Litter and Microplastics (AHOEG) was also established in 2017 after the third UNEA to discuss a proposed international agreement regarding that waste type.52 In preparation for the fifth UNEA, the AHOEG had been given the mandate to advise on potential voluntary and/or legally binding governance options on plastic

Ibid, 15. UNEP/EA.4/Res.9, United Nations Environment Assembly of the United Nations Environment Programme, Resolution (Nairobi, 11–15 March 2019). 51 Ibid. 52 See, e.g., United Nations Environment Assembly of the United Nations Environment Programme, Report of the first meeting of the ad hoc open-ended expert group on marine litter and microplastics, UNEP, 1st mtg, UN Doc AHEG/2018/1/6 (19 June 2018). 49 50

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pollution management across national, regional and international levels.53 They were also tasked with carrying out a survey of all existing activities and actions addressing marine plastic litter and microplastics with a view to the necessary financial and technical resourcing required and their measurable effectiveness.54 The AHOEG comprised of Member States, industry representatives and civil society experts to further examine the barriers and advise the assembly on governance strategy options to combat marine plastic litter and microplastics from all sources. Reviewing 18 international instruments and 36 regional instruments, the UNEA and AHOEG observed numerous gaps in existing frameworks addressing plastics and plastic pollution.55 It concluded that firstly, there is no international instrument or institution whose primary mandate addresses marine plastic litter, or preferably plastic pollution “upstream from the extraction of raw materials, design and use phrases of plastic polymers and additives to final treatment and disposal,” coordinating existing efforts and management of plastic across its lifecycle.56 Secondly, there is an absence of globally binding standards to mitigate plastic pollution, both land and sea based.57 Other gaps noted included the pocketed coverage of existing instruments, the insufficient recognition of the health risks posed by particularly micro- and nanoplastics, and the ineffective implementation of the precautionary principle.58 The UN Environment Programme (UNEP) subsequently concluding that:

53 UNEP, ‘Marine Litter and Microplastics’ UN Doc UNEP/EA.3/Res.7 (20 July 2017). The first meeting of the expert group was held in Nairobi, Kenya from 29–31 May. The second meeting of the expert group was held in Geneva, Switzerland from 3–7 December 2018. The third meeting of the expert group was held in Bangkok, Thailand from 18–22 November 2019. The fourth meeting of the ad hoc open-ended expert group on marine litter and microplastics (AHEG-4) took place virtually from 9–13 November 2020. The fourth meeting was the final meeting of the AHEG, with the experts having completed their mandate from the UNEA: UNEA, ‘Ad Hoc Open-Ended Expert Group on Marine Litter and Microplastics’ Act #ForNature (Web Page, 2022) . 54 UNEP, ‘Marine plastic litter and microplastics’ UN Doc UNEP/EA.4/Res.6 (15 March 2019). 55 UNEP, Report of the First Meeting of the Ad Hoc Open-Ended Expert Group on Marine Litter and Microplastics (Nairobi, 29–31 May 2018), UNEP/AHEG/2018/1/6, para 60. 56 UNEP, Combating Marine Plastic Litter and Microplastics Summary for Policymakers: An Assessment of the Effectiveness of Relevant International, Regional and Subregional Governance Strategies and Approaches (2017) 5. 57 Ibid, 12. 58 Ibid, 12–13.

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“current governance strategies and approaches provide a fragmented approach that does not adequately address marine plastic litter and microplastics.”59 First Meeting Discussions of the AHOEG suggest that some representatives consider preventative steps and mitigation efforts to be the most cost-effective option, as opposed to a reactive response once plastic pollution has already occurred.60 One of the options proposed by the first meeting of the AHOEG is the creation of “a new global architecture with a multi-layered governance approach”.61 They further argued that maintaining the status quo is not a viable option and further action is required62 given the current lack of enforcement and accountability mechanisms to fully address global plastic pollution.63 Any proposed framework would rely on cooperative action from not only governments, but also the private sectors and civil society to stop plastics before they contaminate the oceans.64 Key advantages of this approach include the potential for coordinated action and the creation of a mechanism through which countries can report on their efforts, learn from one another and establish a best practice approach.65 Some representatives at the meeting argued preventative steps and mitigation efforts to be the most cost-effective option, as opposed to a reactive response once plastic pollution has already occurred.66 Second and Third Meetings At the second meeting in December 2018, AHOEG held two workshops to better understand the key issues of information and monitoring, and govern-

Ibid, 5. United Nations Environment Assembly of the United Nations Environment Programme, Report of the first meeting of the ad hoc open-ended expert group on marine litter and microplastics, UNEP, 1st mtg, UN Doc AHEG/2018/1/6 (19 June 2018), 14 [77]. 61 Ibid, 12 [60]. 62 Ibid. 63 Ibid. 64 Simon Silns and Maro Luisa Schulte, Stopping Global Plastic Pollution: The Case for an International Convention (Heinrich-Böll-Foundation, 2017). 65 United Nations Environment Assembly of the United Nations Environment Programme, Report of the first meeting of the ad hoc open-ended expert group on marine litter and microplastics, UNEP, 1st mtg, UN Doc AHEG/2018/1/6 (19 June 2018), 16 [88]. 66 Ibid, 14 [77]. 59 60

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ance.67At the third meeting in Bangkok, Thailand, in December 2019, the AHEOG asked the Secretariat to do a stocktaking exercise through a survey and other submissions about ongoing work on marine litter and microplastics. The document also had to ensure that the stocktake was accounting for an effectiveness analysis of the possible response options. Lastly, they required the Secretariat to undertake reports on the financial and technical resources and mechanisms available to address the issue, and on the issue of partnerships.68 Fourth Meeting In 2020, AHOEG was supposed to meet twice, but the impact of the global COVID-19 pandemic saw the UNEA Bureau decide to meet only once.69 At the fourth and final meeting, delegates agreed that “upstream” activities should be targeted in a new agreement.70 Attendees discussed a stocktaking that the Secretariat had undertaken of current actions and their effectiveness on marine litter and microplastics. That report further determined that the current emphasis was on “downstream” efforts at the national and sub-national level, primarily such campaigns like awareness-raising activities and beach-clean-ups.71 Almost unanimously, delegates agreed that “upstream activities” related to pollution prevention are essential to dealing with the issue of marine plastic pollution.72 The attendees heard from Inger Andersen, Executive Director of UNEP, who stated that marine pollution was a vital part of UNEP’s medium-term strategy to be discussed in 2021. She noted that, as the Ad-hoc Open-ended Expert Group on Marine Litter and Microplastics (AHEG-4) expert group 67 Tallash Kantai and Nadia Sohier Zaman, ‘Fourth Meeting of the Ad-hoc Open-ended Expert Group on Marine Litter and Microplastics: 9–13 November 2020’ (2020) 16(154) Earth Negotiations Bulletin 1. 68 Ibid. 69 Ibid. 70 UNEP, 9–14 November 2020, hosted by UNEA online, UNEP/AHEG/4/L.1 (2020) Draft report on the work of the ad hoc open-ended expert group on marine litter and microplastics at its fourth meeting 17–18 (UNEP, ‘Draft report’). The upstream activities to be classified as pollution weren’t particularized, but it was noted that “extended producer responsibility and polluter pays mechanisms”, as well as “taxes, levies and fines” could “support upstream measures” (UNEP, ‘Draft report’, para 94). Problematic “upstream issues” of plastic production that were mentioned “in particular” included “unsustainable plastic production and consumption” (UNEP, ‘Draft report’, para 123). 71 IISD, ‘Marine Litter and Microplastics Expert Group Forwards Recommendations to UNEA’ (Web Page, 2020) (IISD, ‘Marine’). 72 IISD, ‘Marine’. See also UNEP, ‘Draft report’, 18–20.

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was completing its role, the momentum generated towards action on marine litter and microplastics would underpin the further development of the Global Partnership on Marine Litter.73 The states further highlighted there was an, “emerging convergence around the need for a new global treaty” but were unsure how to reflect this position. Some states argued any document needed to signal to the UNEA that an intergovernmental negotiating committee needed to be created to start conversations on a new treaty, while other states disagreed with that approach.74 The delegates then considered a revised draft of the Chair’s summary,75 which was to be the key output of the process.76 Chair Satoru Iino of Japan noted that the summary was a reflection of discussions held on 12 November 2020, which regarded “policy discussions on marine litter” and expressions of support “for a new global agreement”, and was a, “neutral and factual summary” to give to the UNEA. Delegates agreed that the summary was a “balance of views shared during the entire AHEG process”, but should not be considered a negotiated outcome.77 However, several states had hoped that the summary would include stronger language on the need to create a negotiating process towards a new global plastic pollution agreement.78 The Group then agreed to a Chair’s summary which was given to delegates at UNEA-5.79 The summary highlighted potential options for continued work for consideration by UNEA-5 including: • developing a global common vision, including examples of shared visions like SDG 14.1 (prevent and significantly reduce marine pollution of all kinds, in particular from land-based activities, including marine debris and nutrient pollution by 2025), the Osaka Blue Ocean Vision, the Ocean Plastics Charter, and UNEA Resolution 3/7 on the long-term elimination of discharge of litter and microplastics to the ocean; 73 4th Meeting of the Ad-hoc Open-ended Expert Group on Marine Litter and Microplastics (AHEG-4), Summary Highlights of the Meeting . 74 Ibid. 75 Revised Draft Chair’s Summary for the Ad Hoc Open-Ended Expert Group on Marine Litter and Microplastics . 76 Ibid. 77 4th Meeting of the Ad-hoc Open-ended Expert Group on Marine Litter and Microplastics (AHEG-4), Summary Highlights of the Meeting . 78 Marine Litter and Microplastics Expert Group Forwards Recommendations to UNEA, IISD, 18 November 2020 . 79 Ibid.

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• developing and enhancing national action plans and their implementation, covering the lifecycle of plastic, as the basic framework that grounds countermeasures on marine plastic litter; • strengthening regional and international cooperation to facilitate national actions, including enhancing financial and technical assistance, capacity building, technology transfer, and sharing best practice; • developing and enhancing a scientific basis, especially with regard to monitoring, source inventories, and impact assessment; • facilitating multi-stakeholder engagement in support of decision-making processes and implementation of actions to address marine litter; • strengthening existing instruments, frameworks, partnerships, and actions such as the GPML, ongoing work under the Basel, Rotterdam and Stockholm Conventions, the G20 implementation framework, and the Ocean Plastics Charter; • developing a new global agreement, framework or other form of instrument, which could be legally binding or contain non-legally binding elements, to provide a legal framework to facilitate national responses for those countries with limited resources and capacities; and • enhancing a coordination framework amongst existing instruments and between existing and future instruments to enhance collaboration and avoid duplication of existing efforts towards a common vision.80 Participants also drew attention to the impacts of COVID-19 on single-use plastics, noting in particular the burden on waste management posed by disposable masks and other personal protective equipment that contains plastic.81

UNEA 5.1 MEETING UNEA-5 delegates considered these options, including whether to endorse a global agreement, when it convened virtually in February 2021 (Meeting 5.1).82 Despite support for a treaty, there was much divergence regarding the scope and binding nature of a treaty. States stressed the need to ensure measures take into account their respective economic and regional circumstances, and include technical and financial support for developing countries to meet

80 Tallash Kantai and Nadia Sohier Zaman, ‘Fourth Meeting of the Ad-hoc Open-ended Expert Group on Marine Litter and Microplastics: 9–13 November 2020’ (2020) 16(154) Earth Negotiations Bulletin 10. 81 Marine Litter and Microplastics Expert Group Forwards Recommendations to UNEA, IISD, 18 November 2020 . 82 Ibid.

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obligations. The U.S., Saudi Arabia, Japan and Canada in particular expressed their opposition to a globally binding agreement, with Japan and the U.S. arguing for the right to implement measures they deem necessary to address marine litter and microplastics.83 Non-state actors such as the World Wide Fund for Nature presented a proposed treaty framework, while noting that 50% of the world supports a new global agreement to address plastic pollution. The International Council of Chemical Associations expressed support for a global approach that would be transparent and takes into account existing measures.84

DRAFT RESOLUTIONS TO BE POTENTIALLY ADOPTED AT UNEA 5.2 In the lead up to the UNEA-5.2 Meeting in 2022 a number of draft resolutions were put forth by states as mechanisms to guide discussions on the contours of a global plastic convention. The plurality of opinion concerning the contents and operation of such an instrument is reflected by the three draft resolutions, which were proposed for consideration at UNEA-5.2 namely, the Rwanda-Peru, Japan and India draft resolutions which are examined below. Rwanda–Peru Draft Resolution The Rwanda-Peru draft resolution titled, Internationally Legally Binding Instrument on Plastic Pollution was drafted at the 2021 Ministerial Conference on Marine Litter and Plastic Pollution,85 and submitted to the UNEP on 20 October 2021.86 The resolution, proposed by Peru and Rwanda, was

83 Tallash Kantai and Nadia Sohier Zaman, ‘Fourth Meeting of the Ad-hoc Open-ended Expert Group on Marine Litter and Microplastics: 9–13 November 2020’ (2020) 16(154) Earth Negotiations Bulletin 1, 3–11. 84 Ibid, 4, 8. 85 Plastic Soup Foundation, ‘What Are the Chances of a Robust International Plastics Treaty?’, News (21 January 2022) (Plastic Soup Foundation, ‘What Are the Chances of a Robust International Plastics Treaty?’). 86 Rwanda–Peru Draft Resolution – Draft Resolution on an Internationally Legally Binding Instrument on Plastic Pollution (20 October 2021) (‘Rwanda–Peru Draft Resolution’).

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co-sponsored by Chile, Costa Rica, Ecuador, the EU and its members, Colombia, Guinea, Kenya, Madagascar, Norway, Philippines, Senegal, Switzerland, United Kingdom, and Uganda. Furthermore, hundreds of NGOs,87 and more than 60 nations,88 endorsed the Rwanda-Peru resolution, calling for the establishment of an, “International Negotiating Committee (INC) with a mandate to negotiate a legally binding global agreement to address plastic pollution.”89 The resolution has been praised for its “clarity, strength, and the inclusion of the human and environmental health element, its life-cycle [and circular economy] approach”,90 as well as its call for global financing to support developing nations, and the establishment of a scientific advisory committee to ensure nations have the most up to date knowledge.91 This draft resolution was based on the Paris climate agreement since like the climate agreement, it proposes that nations adopt action plans and set targets to cease producing plastic waste.92 To implement this, nations would be required to create new industry standards for sectors which use plastic and develop effective waste management systems.93 Japan Resolution The Japan draft resolution titled Draft Resolution on An International Legally Binding Instrument on Marine Plastic Pollution was submitted to the UNEP on 6 December 2021.94 The resolution calls for an, “international legally binding instrument on marine plastic pollution” and requests the convening of an INC.95 It includes provisions to set a common objective and to develop and report national action plans, to review progress, to address increasing of knowledge and raising awareness, to cooperate and coordinate with other frameworks, to promote stakeholders’ actions, to specify arrangements for

McCarthy, ‘First-Ever Global Plastic Pollution Treaty’. Parra and Arkin, ‘The Time for a Global Plastics Treaty is Now’. 89 Rwanda–Peru Draft Resolution, 1. 90 Plastic Soup Foundation, ‘What Are the Chances of a Robust International Plastics Treaty?’. 91 McCarthy, ‘First-Ever Global Plastic Pollution Treaty’. 92 Ibid. 93 Ibid. 94 Japan Draft Resolution – Draft Resolution on an International Legally Binding Instrument on Marine Plastic Pollution (6 December 2021) (‘Japan Draft Resolution’). 95 Japan Draft Resolution [1]. 87 88

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capacity building and technical and financial assistance, and to promote research and development. It focused on the fact that “land-based sources are the major causes of marine plastic pollution” and: “It would cover the whole life cycle of plastics in a manner that promotes resource efficiency and circular economy, while respecting the different national circumstances.”96 However, the resolution has been criticized by NGOs including the Centre for International Environmental Law (CIEL) and the Environmental Investigation Agency (EIA) for being “significantly weaker” than the Rwanda-Peru resolution because it focuses on marine litter as opposed to plastic pollution more generally,97 and posits the plastics issues as primarily one of poor waste management, requiring improvements to infrastructure rather than addressing the plastics lifecycle.98 This resolution received little support from the international community,99 though the American Chemistry Council on 16 December 2021 gave its support to the Japan draft resolution, claiming that it, unlike the Rwanda-Peru draft resolution, left decision-making to the INC.100 India Draft Resolution The India draft resolution titled, Framework for Addressing Plastic Product Pollution Including Single-Use Plastic Product Pollution was submitted to the UNEP on 31 January 2022.101 Unlike the Rwanda-Peru and Japan draft resolutions, the India resolution does not address the establishment of an INC or the drafting of a global legally binding agreement concerning [marine] plastic pollution and it has been suggested that this resolution implies “the international community should pump the brakes on a plastics treaty”.102 Rather, this resolution offers a “non-binding voluntary framework” with a focus on

96 Draft Resolution on an international legally binding instrument on marine plastic pollution Proposed by: JAPAN (Cover note). 97 Plastic Soup Foundation, ‘What Are the Chances of a Robust International Plastics Treaty?’; McCarthy, ‘First-Ever Global Plastic Pollution Treaty’. 98 Parra and Arkin, ‘The Time for a Global Plastics Treaty is Now’. 99 Ibid. 100 Steve Toloken, ‘A Paris Climate Treaty for Plastics, Yes, but What Should it Say?’, Plastics News (online, 17 December 2021) . 101 India Draft Resolution – Framework for Addressing Plastic Product Pollution including Single-Use Plastic Product Pollution (31 January 2022) (‘India Draft Resolution’). 102 Parra and Arkin, ‘The Time for a Global Plastics Treaty is Now’.

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“single-use plastic product pollution.”103 Specifically, the resolution provides guidance to Member States regarding domestic plastic waste management strategies, outlines the importance of a multi-stakeholder approach, and calls for the establishment of fora and annual meetings with participation from Member States. In Table 7.1 there is a comparison between the three draft resolutions to create a global plastic treaty focusing on the issues of: whether to create an INC; what such a body’s mandate should be; when negotiations should conclude; whether it would be a legally binding instrument; the scope and subject matter; whether it incorporates a lifecycle or downstream approach; the inclusion of financial mechanisms, whether to have a distinct scientific and socio-economic body to support treaty implementation; and whether such an instrument addresses the question of additives in plastics.

RUN UP TO THE UNEA-5.2 MEETING Prior to the meeting hopes were raised when the incoming U.S. President, Joe Biden, declared he was a “strong supporter” of a legally binding agreement to end plastic pollution, resiling from the nation’s previous position under former president, Donald Trump,104 who was opposed to a plastic treaty as made clear at an expert group meeting in 2019.105 As Antony Blinken, Secretary of State, outlined in a statement to the UNEA in Nairobi in November 2021, the U.S.’ goal for a treaty is: “to create a tool that we can use to protect our oceans and all … life that they sustain from growing global harms of plastic pollution”, which requires nations, “to develop and enforce strong national action plans … address[ing] this problem at its source.”106 However, given the U.S. is the world’s top per capita single-use plastic waste producer and the home of many of the world’s largest chemical companies, the nation had also indicated some resistance to a treaty, which imposes restrictions on plastic production,107 with the U.S. initially supporting, together with China, a “more limited” ocean focused treaty ahead of UNEA-5.2.108

103 Ocean Plastics Leadership Network, ‘UNEA 5.2: Special Report’ (17 February 2022). 104 Verity, ‘Historic UN Agreement to Fight Plastic Pollution’. 105 Parra and Arkin, ‘The Time or a Global Plastics Treaty is Now’. 106 Birnbaum and Kim, ‘Plastics Production is Skyrocketing’. 107 Geddie and Brock, ‘Big Oil’s Plastic Boom Threatens Pact’. 108 Hodgson, ‘Manufacturers Lobby to Weaken UN Global Plastics Treaty Proposal’.

relevant’.”

to address “marine pollution”.

address “plastic pollution”.

Subject matter

International legally binding agreement

Legally binding global agreement to

Scope

plans, cooperation, establishment of technical and financial fora, scientific research for development of alternative

cooperation and coordination, technical and financial assistance, research and development into innovative solutions.

cooperation and coordination, financial

and technical arrangements, research and

development into innovative solutions.

materials.

References national or regional action References national action plans,

mainly “single-use plastic products”.

Resolution concerns “plastic pollution”,

Not mentioned.

References national action plans,

agreement”.

an “international legally binding

binding global agreement”.

binding agreement

Called for the development of

Called for INC to negotiate a “legally

Requirement for a global legally

UNEA.

in advance of the sixth session of the

single-use plastic product pollution

analysis and way forward addressing

States and stakeholders to provide an

Calls for annual meetings with Member

negotiations].

aspects that the [INC] may consider

of the UNEA.

INC members can consider during

INC empowered to ‘consider any other

INC to complete work by sixth session

marine plastic pollution” [limit on what

to address plastic pollution’ with the

of the UNEA.

legally binding instrument to address

international legally binding instrument

INC to complete work by sixth session

“mandate to prepare an international

Open mandate: “mandate to prepare an

Negotiations in time for UNEA-6

Not mentioned. Not mentioned.

Called for the establishment of an INC. Closed mandate:

Called for the establishment of an INC.

INC’s mandate

India

Called for establishment of an INC

Japan

Rwanda-Peru

Comparison between Rwanda-Peru, Japan and India draft resolutionsa

Topic

Table 7.1

244 Global plastic pollution and its regulation

of disposable single-use plastic products” and mentions not only recycling and waste management but also product design and production.

plastics though emphasis is placed on downstream interventions including monitoring litter entering marine environments, reducing production

design and consumption, and waste

management.

but no special body.

a mechanism to provide scientific and

microplastics, though no mention of additives.

and harmful substances as well as

intentionally added microplastics.

No mention of additives or microplastics.

monitoring and reporting fora.

and policy, technology, finance, and

Source: a. Adapted from: Centre for International Environmental Law and Environmental Investigation Agency, ‘Comparison Table on the Potential Resolutions on Plastic Pollution to Be Adopted at UNEA 5.2’ (10 December 2021) .

the discharge of plastic litter and

and use, including compounds, additives

microplastics

Mentions the urgent need to eliminate

Mentions need to address product design

Addresses additives to plastics and

a dedicated body.

socio-economic advice and guidance via

scientific and technological knowledge

and objectives of agreement; and

treaty implementation

financial assistance and to strengthen

support implementation of priorities

and socio-economic body to support

Calls for arrangements for technical and

Calls for a financial mechanism to

Financial mechanism, and scientific

provide for.

Rwanda-Peru and India resolutions

production or product design like the

Emphasis is not on sustainable

management interventions.

Advocates for formation of legal

“responsible consumption and production

Makes reference to the “lifecycle” of

Interventions target production, product

of plastic pollution, and other waste

Lifecycle approach: Emphasizes

Downstream approach:

Lifecycle approach:

Lifecycle or downstream approach

India

Japan

Rwanda-Peru

Topic

Crafting a global plastics treaty 245

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Also Japan, being the second largest per capita consumer of plastic containers and packages in the world (after the U.S.),109 with a large petrochemical sector,110 and waste-to-energy projects being undertaken at scale,111 had outlined that it preferred to promote the use of alternative materials such as bioplastics as opposed to restricting virgin polymer production.112 Further, they argued, any approach adopted by a particular country should depend on their ‘national circumstances’ when determining their response.113

OPEN ENDED COMMITTEE OF PERMANENT REPRESENTATIVES DISCUSSIONS The Resumed Meeting of the fifth OECPR114 occurred on 21–25 February 2022 online and in Nairobi, and was chaired by H.E. Ms. Luísa Fragoso, Chair of the Committee of Permanent Representatives, Ambassador and Permanent Representative of Portugal.115 Marine litter and the issue of microplastics was expected to be the original focus of the meeting and formed a key agenda item at the proceedings.116 While some states support a global vision and acknowledge the need for action across the plastics lifecycle e.g. South Korea,117 there were varied views as to whether a new binding instrument was required to achieve this.118 A significant proportion of states had expressed support 109 Taylor Stewart, ‘Japan’s Plastic Footprint Is Larger Than You May Think: It’s more important than ever to be conscious of your plastic consumption’, Tokyo Weekender (23 July 2020) . 110 Geddie and Brock, ‘Big Oil’s Plastic Boom Threatens Pact’. 111 Parra and Arkin, ‘The Time for a Global Plastics Treaty is Now’. 112 Geddie and Brock, ‘Big Oil’s Plastic Boom Threatens Pact’. 113 Ibid. 114 The Committee of Permanent Representatives was created in May 1985 (Decision 13/2 Governing Council Decision) with members comprising all accredited UNEP Permanent Members to prepare meetings of the UNEA as well as review its implementation of decisions. Committee of Permanent Representatives . 115 ‘Resumed Meeting of the Fifth Open-ended Committee of Permanent Representatives’, UN Environment Programme (Web Page) . 116 United Nations Environment Assembly of the United Nations Environment Programme, Looking ahead to the resumed UN Environment Assembly in 2022 – Message from online UNEA-5, Nairobi 22–23 February 2021, 5th sess, UN Doc UNEP/EA.5/L.5 (18 February 2021) 1. 117 Birnbaum and Kim, ‘Plastics Production is Skyrocketing’. 118 Tallash Kantai and Nadia Sohier Zaman, ‘Fourth Meeting of the Ad-hoc Open-ended Expert Group on Marine Litter and Microplastics: 9–13 November 2020’ (2020) 16(154) Earth Negotiations Bulletin 1, 7.

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for global plastics agreement promoting a circular economy approach,119 with the European Union and a coalition between Germany, Ecuador and Ghana particularly driving the issue and need for a dedicated international discussion regarding a plastics treaty.120 As the representative for the EU outlined at the commencement of the meeting, “[t]he resumed fifth session should be a springboard for ambitious, coordinated action to tackle the triple crises of climate change biodiversity loss,”121 and they urged the UNEA, “to make a breakthrough and formally launch negotiations on a legally binding global agreement on plastics.”122 The purpose of the OECPR’s resumed meeting was, “to establish two working groups and five clusters to finalise the draft resolutions and draft decisions to be submitted to the [UNEA] for consideration and possible adoption at its resumed fifth session.”123 In the first cluster, co-facilitated by H.E. Mr Damptey Bediako Asare, High Commissioner and Permanent Representative of Ghana and Mr Robert Bunbury, Deputy Permanent Representative of Canada, the OECPR considered the Rwanda-Peru, Japan, and India draft resolutions,124 and debated provisions to be included in the text presented for consideration at UNEA-5.2. Scope and Implementation of the Proposed Treaty At the Plenary on 21 February 2022, the EU outlined that a treaty must address plastic pollution globally not just marine litter; must cover the lifecycle of plastics including upstream and downstream measures, in addition to microplastics; and adopt a circular economy approach. The EU stressed that current Ibid. United Nations Environment Assembly of the United Nations Environment Programme, Proceedings of the United Nations Environment Assembly at its fifth session, 5th sess, UN Doc UNEP/EA.5/25 (24 February 2021) 11 [63]. 121 United Nations Environment Assembly of the United Nations Environment Programme, Draft Proceedings of the UNEA at Its Resumed Fifth Session, 4. 122 Ibid. 123 United Nations Environment Assembly of the United Nations Environment Programme, Open-ended Committee of Permanent Representatives to the United Nations Environment Programme: Fifth Meeting: Draft Chair’s Summary of the Resumed Fifth Meeting of the Open-ended Committee of Permanent Representatives (25 February 2022) 2 (Draft Chair’s Summary of the Resumed Fifth Meeting of the Open-ended Committee of Permanent Representatives). 124 United Nations Environment Assembly of the United Nations Environment Programme, ‘Draft Chair’s Summary of the Resumed Fifth Meeting of the Open-ended Committee of Permanent Representatives’ 2. 119 120

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projections of plastic pollution shows that voluntary initiatives are insufficient and urged states to support a legally binding instrument (LBI). The EU also underlined the need to “listen to the science”, upscale implementation, and enhance funding for nature-based solutions such as bio-plastics.125 Similarly, Peru underscored that a legally binding instrument should address plastic pollution not just marine pollution, adopt a global perspective, utilize a circular economy approach, and address both upstream and downstream measures from production to consumption to waste management. Conversely, Japan, consistent with their draft resolution, called for a legally binding instrument on marine pollution as opposed to plastic pollution.126 During Working Group 1, Cluster 1, where the resolution which was subsequently adopted at UNEA-5.2 was scrutinized, the EU, Peru, Japan, Thailand and the UK wished for the final version of the resolution to retain references to microplastics, tackling the issue at the source, utilizing a lifecycle approach. Furthermore, Thailand and Australia wished to delete the term “marine” from the draft resolution, with Australia noting that plastic pollution originates from land.127 Uruguay commented that the term “marine” would limit the scope of the treaty, together with Thailand and Australia, supporting a broader “plastic pollution” scope.128 On the other hand, the U.S. and Japan, supported the marine plastic scope with Japan noting that the term should be retained since it indicates the transboundary nature of the issue.129 Also that day in the Plenary, the EU further argued that voluntary initiatives are insufficient and that a binding resolution is required.130 Similarly, in Working Group 1, Cluster 1, where the final text for the draft resolution was prepared, the group discussed the scope of the proposed instrument, but were unable to converge around: • whether a future instrument would be legally binding, voluntary or both; • whether the instrument would address marine plastic pollution or plastic pollution more generally; • whether it would include marine litter; • the timeframe of the INC.131 UNEA-5.2 #1, Earth Negotiations Bulletin, 16 (157) Tuesday 22 February 2022,

125

1.

126 WWF, Notes from Resumed Fifth Meeting of OECPR, UNEA 5.2 February 2022. 127 Ibid. 128 Ibid. 129 Ibid. 130 Ibid. 131 UNEA-5.2 #1, Earth Negotiations Bulletin, 16 (157) Tuesday 22 February 2022, 2.

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Chile and Australia wished for the term “legally binding” to remain when referring to the instrument, whereas the U.S. wished for “legally binding instrument” to be altered to “legal instrument”.132 Furthermore, the U.S. called for the phrase “with binding and non-binding provisions” to be added in following a reference to the instrument, with the UK and Australia supporting this in order to clarify the meaning of “legally binding instrument”.133 The EU also submitted that the merging of draft resolutions would be a good basis for discussion, with this having the support of 60 Member States, including the U.S., who at Working Group 1, Cluster 1, in agreement with the UK, outlined their support for a technical merger of resolutions.134 Conversely, Japan stated that it would withdraw its draft resolution if Rwanda and Peru withdrew their draft resolution,135 with Peru hoping other Member States would consider their proposal in creating a robust resolution at UNEA-5.2.136 In regards to the India draft resolution, the EU noted that the provision in the draft resolution outlining that Member States should develop waste management strategies based on reduce, reuse and recycle principles had already been integrated into the intended text to be adopted at UNEA-5.2, with Australia agreeing.137 Australia also submitted, with the EU and U.S. agreeing, that measures addressing volumes and focusing on single-use plastics, as provided for by the India draft resolution, are insufficient to address plastic pollution and that a legally binding global agreement is required.138 On Tuesday, 22 February 2022, the resumed fifth session of the Open-ended Committee of Permanent Representatives (OECPR-5.2), delegates continued discussions, particularly on the scope of the draft resolution on an international legally binding instrument (LBI) on [marine] plastic pollution.139 Brazil, supported by Argentina, Sri Lanka and Cuba, proposed including reference to the Principles of the Rio Declaration. This was opposed by Japan, Australia, Ecuador and Norway. Chile, Thailand, Uruguay, Colombia and others supported an explicit reference to microplastics. This was opposed by Brazil, Cuba, and the U.S., with Ecuador suggesting a general reference to “all types of plastics.” Argentina, Brazil and the U.S. called for deleting the reference to

132 WWF, Notes from Resumed Fifth Meeting of OECPR, UNEA 5.2 February 2022. 133 Ibid. 134 Ibid. 135 Ibid. 136 Ibid. 137 Ibid. 138 Ibid. 139 UNEA-5.2 #2, Earth Negotiations Bulletin, 16 (158) Wednesday 23 February 2022, 1.

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the circular economy, opposed by the EU who recalled ongoing discussions on this matter under UNEA. Thailand, supported by Singapore, Ecuador, Australia, Iceland, and others proposed text to ensure a broad and open scope for INC discussions.140 Delegates continued discussing the framework for addressing plastic product pollution including single-use plastic product pollution, by India. Australia, with Rwanda, Peru and others, underlined that the most comprehensive way to address [marine] plastic pollution was through an LBI, underscoring, with Thailand, that voluntary measures would not be enough. The EU, with Australia and Peru, noted that certain elements of the draft resolution could be discussed as part of wider negotiations on an LBI. Thailand, with Peru, Chile, the Russian Federation and others, requested India to merge their text with the co-facilitators’ draft, to address any voluntary approaches included under the LBI. Japan noted that certain elements of the resolution are already being addressed under the Global Platform on Marine Litter.141 The Russian Federation noted that an INC would take time to negotiate an LBI, suggesting that elements of the Indian draft could be set in motion in parallel to the INC process. Highlighting the global solidarity to address plastic pollution, India described the difference between collective voluntary action and voluntary actions by individual states. They stated that an “LBI is not the only way to advance on this issue, underlining that progress will be delayed by lengthy treaty negotiations”. Co-facilitator Asare then proposed informal consultations with India and other concerned delegations to resolve the impasse.142 With regard to the key issue of establishing a Science-Policy Panel, which was established at UNEA-5.2,143 the U.S. suggested at Cluster 3 on Ibid. Ibid. 142 Ibid. 143 The Science-Policy panel is intended to establish a science-policy panel on pollution, chemicals and waste, to inter alia “ensure ... application of the best science to policymaking and solutions”. It was consolidated at UNEA 5.2 in Resolution 5/8, to “support countries in their efforts to take action, including to ... promote the sound management of chemicals and waste, and address pollution by providing policy-relevant scientific advice on issues”. A resolution to establish same was co-sponsored by various stakeholders and presented at UNEA 5.2: Rachael Kupka, ‘Why We Need a Science-Policy Panel on Chemicals, Waste and Pollution’ IISD (online, 9 December 2021) . ‘Proposal for a draft resolution to establish a Science – Policy Panel to support action on chemicals, waste and pollution’ (Submitted by Costa Rica, Switzerland, United Kingdom of Great Britain and Northern Ireland, and Uruguay) . See UNEP, 28 February–3 March 2022, hosted by UNEP in Nairobi, Kenya, UNEP/ 140 141

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22 February 2022 that the Panel should be empowered to consider pollution generally with a focus on chemicals and waste, though not conflating “chemicals” and “waste”.144 The U.S. also called for the Panel to have an ambitious focus, for instance, by also considering air pollution, though underscored that duplication should be avoided.145 At the Plenary held on the 23 February, Working Group 1 Cluster 1 proposed considering a “basket of issues” on: scope; concepts emerging from the second operational paragraph of the Japanese and Rwandan draft resolutions which focused on what should be in any agreement;146 financing; how to progress on the draft from India; and legal issues. They also asked delegates whether to proceed in sequence or in parallel sessions. Given the hybrid nature of the meeting, and the number of small delegations, many expressed concerns regarding effective participation.147 Following advice from the UNEP Legal Advisor, delegates agreed to rename the preparatory meeting to an ad-hoc open-ended working group (OEWG). Uruguay, supported by the Russian Federation and the Democratic Republic of Congo, proposed additional text requesting the Executive Director to ensure necessary support of the UNEP Secretariat to the INC. When cleaning up paragraphs, Antigua and Barbuda, Iceland, and the EU were concerned that text supporting civil society and major groups participation had been lost and suggested including it earlier in the text. “Our text is still a collection of brackets at this point,” lamented one delegate, “but at least we are beginning to see the bigger picture.”148 The U.S. submitted, with the EU, Antigua, Barbuda, Zambia, Japan, and Norway and co-facilitators (Damptey Bediako Asare, Ghana, and Robert Bunbury, Canada) agreeing, that the completion date for the INC should be 2024 as opposed to UNEA-6, arguing that 2024 is realistic, adds ambitious pressure, and that UNEA-6 may be moved due to the COVID-19 pandemic.149

EA.5/Res.8 (2022) 5/8. Science-policy panel to contribute further to sound management of chemicals and waste and to prevent pollution. 144 WWF, Notes from Resumed Fifth Meeting of OECPR, UNEA 5.2 February 2022. 145 Ibid. 146 See ; . 147 UNEA-5.2 #3, Earth Negotiation Bulletin, 16 (159) Thursday 24 February 2022, 1. 148 Ibid, 2. 149 See .

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Conversely, Australia was content to retain the completion date for the INC as UNEA-6. The EU stated that firm dates should be established for the first meetings of the INC, calling for the preparatory meeting to be held in the first half of 2022, and the first INC meeting in the second half of 2022.150 At Working Group 1 negotiations on 24 February delegates discussed the co-facilitators draft on an LBI on [marine] plastic pollution. The Russian Federation, Algeria, and others supported new text proposed by Palestine permitting participation of “states members of specialised agencies” in the OEWG and in the INC. The U.S., opposed by the Russian Federation, suggested that the INC be tasked to develop an international LBI, “with legally-binding and non-binding commitments.” The EU preferred the term “provisions” to “commitments,” which was supported by the U.S., Brazil and Chile.151 Peru suggested using agreed language from Minamata, that the LBI “could include legally-binding and non-legally binding provisions.” Switzerland, Zambia, Norway, Democratic Republic of Congo, Thailand, the Russian Federation, Eritrea, Iceland, Rwanda and Uruguay favoured an international LBI, highlighting that this includes both legally binding and non-legally binding provisions. The EU, with Chile, preferred inserting agreed language from the Governing Council decision on Minamata, by “taking into account, among other things, the principles of the Rio Declaration.”152 India called to delete reference to “the whole lifecycle of plastic,” opposed by Zambia, Norway, Uruguay, Canada, Republic of Korea, Australia, Costa Rica, Kenya, UK, Samoa and Thailand. The EU preferred that the LBI works “to prevent and reduce plastic pollution, including microplastics, in all environmental compartments, especially in the marine environment.” Chile suggested “environmental ecosystems,” while the UK proposed “all parts of the environment,” and Eritrea and Australia, proposed referring to the environment as a whole. Antigua and Barbuda, with Uruguay, Chile, and others, called for including reference to the “elimination” of plastic pollution.153 The U.S. noted that each word has a connotation for possible implementation actions, preferring to give the INC the latitude to decide which specific measures to “address” plastic pollution, with the UK preferring the term, “tackle.” Eritrea called to delete “marine litter,” and with Zambia, noted the resolution’s focus on plastic pollution. India acquiesced to merging their draft 150 WWF, Notes from Resumed Fifth Meeting of OECPR, UNEA 5.2 February 2022. 151 UNEA-5.2 #3, Earth Negotiation Bulletin, 16 (159) Friday 25 February 2022 1. 152 UNEA-5.2 #4, Earth Negotiation Bulletin, 16 (160) Friday 25 February 2022, 1–2. 153 Ibid.

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resolution on framework for addressing plastic product pollution including single-use plastic product pollution with the co-facilitator’s draft. Discussions on these issues then continued in an informal setting seeking broad agreement on what the final text should look like.154 On Friday, 25 February 2022, delegates attending the resumed fifth session of the Open-ended Committee of Permanent Representatives (OECPR-5.2) convened for their final day of official negotiations, engaging in multiple discussions to resolve outstanding issues on plastic pollution, biodiversity and nature-based solutions, chemicals, green recovery and circular economy, and procedural matters. One resolution was forwarded to the UNEA for consideration on plastic pollution.155 At the Working Group 1 meeting delegates considered language proposed by the EU, supported by Thailand, UK and Canada, on the design of plastic products as part of a full lifecycle approach, to improve their material and chemical composition towards extending product life. India, Brazil and Japan noted the duplication of text already included in the draft.156 On the scope of the agreement, the Alliance of Small Island States (AOSIS) and the African Group, supported by the EU, proposed that the INC develop an instrument on “plastic pollution, including in the marine environment.” However, China preferred allowing the INC to decide on its own scope, calling for deletion of “including in the marine environment.”157 The group finally agreed that the INC would develop an “international legally binding instrument, on plastic pollution, including in the marine environment, which would include both binding and voluntary approaches, taking into account the principles of the Rio Declaration, based on a comprehensive approach that addresses the full lifecycle of plastics.” Discussions continued as to whether the comprehensive approach should consider states’ national circumstances and respective capabilities, as proposed by India. China, the U.S., Singapore and Ghana favoured referring to “the marine and other environments.”158 The delegates agreed to note the specific impacts of plastic pollution on the marine environment in a separate paragraph. Members also agreed to text recognizing the contribution made by workers under informal and coopera-

Ibid. UNEA-5.2 #5, Earth Negotiations Bulletin, 16 (161) Monday 28 February 2022,

154 155

1.

156 See that draft duplicated the emphasis on “the full lifecycle of plastics” at several different points. . 157 UNEA-5.2 #5, Earth Negotiations Bulletin, 16 (161) Monday 28 February 2022, 1. 158 Ibid.

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tive settings to collecting, sorting, and recycling plastics in many countries, proposed by Argentina. During the closing plenary, Co-Facilitator Bunbury reported that the group would continue its work to complete this resolution at the UNEA-5.2 meeting the following week.159

UNEA-5.2 MEETING The official UNEA-5.2 occurred online and in person at Nairobi, Kenya, from 28 February–2 March 2022. 175 UN Member States including 79 ministers and 17 high-level officials attended,160 with a total of 3,400 delegates attending in person and 1,500 online.161 UNEA-5.2 President Espen Barth Eide (Norway) opened the meeting, reflecting on the half-century achievement of environmental protection since the Stockholm Conference, citing UNEP’s supporting role in combating ozone depletion, pollution, climate change, and other crises. He reminded Member States that they are not called to relinquish their sovereignty, but to use diplomacy for the common good. He urged delegates to deliver on the noble mission of ending plastic pollution and drawing attention to the importance of circularity and announced that the meeting’s gavel made from recycled plastic was commissioned specially for UNEA-6 from Gjenge Makers, a Nairobi-based recycling start-up.162 He argued that the event was: “show[ing] multilateral cooperation at its best against [a] backdrop of geopolitical turmoil.”163 Monda Medina, the head of the U.S. delegation at UNEA-5.2 said that “[t]he goal … is to give countries the flexibility to develop national action plans that work best of them” stating that “[o]verly prescriptive ‘top down’ approaches” can stifle “technological innovation”.164 The representative of Colombia, Mónica de Greiff Lindo, speaking on behalf of the Group of 77 and China at the opening of UNEA-5.2 highlighted the challenges faced by

159 Ibid. See also Siddharth Ghanshyam Singh, ‘False solutions, green washing may put dampener on historic global plastic treaty’, Down To Earth (4 March 2022). 160 Lauren Phipps, GreenBiz Group, ‘Pause for Celebration: A Global Plastics Treaty is on the Way’, In the Loop (11 March 2022) (Phipps, ‘Pause for Celebration’); ‘How to Design an Effective Treaty’. 161 Karen McVeigh, ‘World Leaders Agree to Draw Up “Historic” Treaty on Plastic Waste’, The Guardian (3 March 2022) (McVeigh, ‘World Leaders Agree to Draw Up “Historic” Treaty’). 162 Ibid., 3. 163 McVeigh, ‘World Leaders Agree to Draw Up “Historic” Treaty’. 164 Geddie and Brock, ‘Big Oil’s Plastic Boom Threatens Pact’.

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developing countries.165 Furthermore, the Colombian representative stated that: “The Group of 77 and China supported the multilateral effort to tackle plastic pollution and welcomed the intent to launch negotiations on an international legally binding instrument on plastic, including in the marine environment with ambitious goals, equally ambitious means of implementation and wide participation while fully recognising the different national circumstances and starting points of Member States and observer States.”166 Oman, speaking on behalf of the states of the Asia-Pacific region at the commencement of UNEA-5.2 called for: “a global framework to prevent and reduce plastic pollution that was informed by circular economy principles and the waste management hierarchy, and complemented existing instruments and initiatives” with some states in the region calling for the framework to be based on, “the precautionary approach and the principle of common but differentiated responsibilities.”167 Throughout the day, delegates met in plenary, and in a Committee of the Whole (COW), which swiftly initiated three contact groups to address, inter alia: sustainable lake management; environmental aspects of minerals and metals management; science policy panel for chemicals, waste and pollution; and nature-based solutions (NbS).168 Contact Group III dealt with the issue of plastic pollution.169 The COW finalized the plastics draft resolution to be considered by UNEA-5.2, with this completed and tabled in the early hours of the first day of the conference.170 The resolution titled End plastic pollution: Towards an international Legally Based Instrument (UNEP/EA5/L23) called for the establishment of an INC on plastic pollution, which they forwarded to UNEA for adoption. Thanking Rwanda, Japan and India as the original drafters of the resolution, Peru lauded delegates for their commitment to deliver a binding instrument to combat plastic pollution.171

165 United Nations Environment Assembly of the United Nations Environment Programme, ‘Draft Proceedings of the UNEA at Its Resumed Fifth Session’ 5. 166 Ibid. 167 Ibid. 168 UNEA-5.2 #6, Earth Negotiations Bulletin, 16 (162) Tuesday 1 March 2022, 1. 169 See . 170 Emma Bryce, ‘World’s Nations Commit to Ending Plastic Waste’, The Third Pole (9 March 2022) (Bryce, ‘World’s Nations Commit to Ending Plastic Waste’)’; United Nations Environment Assembly of the United Nations Environment Programme, ‘United Nations Environment Assembly of the United Nations Environment Programme: Draft Report of the Committee of the Whole’ (1 March 2022) 2 (Draft Report of the Committee of the Whole). 171 Ibid 3.

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Mr H E Mr Damptey Bediako Asare of Ghana, Co-Facilitator of the OECPR’s Cluster 1 praised the group for the courage and wisdom in working on the resolution.172 Inger Andersen, Executive Director, UNEP, highlighted “the amazing job done by negotiators,” agreeing on numerous resolutions and catalysing action to address the triple planetary crisis. She underscored agreement on the resolution on plastic pollution, which will deliver the first step towards a global agreement on plastics. She stressed however that, “resolutions will shift the needle if they create real world impact,” calling for implementation and support at the highest political level.173 Resolution to End Plastic Pollution: Towards an International Legally Binding Instrument The UNEA delegates voted unanimously on 2 March 2022 at the closing plenary, to pass the resolution to end plastic pollution.174 The resolution establishes an INC to draft a legally binding plastic pollution treaty by 2024,175 a noticeably shorter period of negotiation compared to most global treaties.176 Most notably, as its name suggests, the resolution calls for the “end”, as opposed to a reduction, of plastic pollution.177 Hence, the Resolution more closely resembles the broad scope of the Rwanda-Peru as opposed to Japan or India resolutions by clearly contemplating upstream measures such as restrictions and bans on certain plastic products, thereby embracing a lifecycle approach to tackling plastic pollution.178 Where the Japanese resolution focuses more discretely on “reducing marine plastic pollution” as a down172 International Institute for Sustainable Development (IISD) Reporting Services, ‘UNEA-5.2 Highlights: Monday 28 February, 2022’ (1 March 2022), Earth Negotiations Bulletin 3 (‘UNEA-5.2 Highlights: Monday 28 February, 2022’). 173 UNEA-5.2 #8, Earth Negotiations Bulletin, 16 (164) Thursday 3 March 2022, 1. 174 United Nations Environment Assembly of the United Nations Environment Programme, ‘Draft Report of the Committee of the Whole’. See Draft Resolution: End Plastic Pollution: Towards an International Legally Binding Instrument (2 March 2022) (‘End Plastic Pollution: Towards an International Legally Binding Instrument’). 175 ‘United Nations Agrees to Create “Historic” Global Treaty’; ‘How to Design an Effective Treaty’. 176 ‘How to Design an Effective Treaty’. See also United Nations Environment Assembly of the United Nations Environment Programme, ‘Draft Proceedings of the UNEA at Its Resumed Fifth Session’ 1. 177 Bryce, ‘World’s Nations Commit to Ending Plastic Waste’. 178 Ibid.

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stream product, via national action plans to reduce waste, awareness-raising and coordination with regulatory frameworks,179 the Rwanda-Peru resolution proposes more direct emphasis on “sustainable production” and strategies to “address product design”.180 The Resolution, like the Rwanda-Peru draft resolution, includes legally binding obligations, provides for financial and technical assistance for developing countries,181 endorsing a “capacity-building” function of the treaty.182 It also calls for global rules and enforcement mechanisms to regulate plastics from manufacturing through to disposal, codifying “lifecycle” and “circular economy” approaches.183 The Resolution also addresses not only plastic waste and its environmental and health impacts, but also the risks that hazardous chemicals pose to human health, “[reaffirmed] to be a key policy basis to ‘prevent plastic pollution’”.184 Christopher Chin, an expert on single-use plastic legislation and executive director of the non-profit Centre on Oceanic Awareness praised the Resolution’s consideration of “plastic pollution in a more holistic way”, and its seeking to integrate a circular economy approach, evident from its dual focus on “sustainable production and consumption” as well as “national and international cooperative measures to reduce plastic pollution”.185 Although the Resolution contemplates legally binding obligations in the treaty, the term “voluntary” appears four times in reference to ocean pollution

179 See for example Draft Resolution on an international legally binding instrument on marine plastic pollution, Proposed by: JAPAN para 2(a), (b), (c), (d), (e), (f). 180 See for example Draft resolution on an internationally legally binding instrument on plastic pollution para 2(b), (c). 181 Adam Vaughan, ‘Countries Agree to End Plastic Pollution in Ambitious Global Treaty’, New Scientist (1 March 2022) (Vaughan, ‘Countries Agree to End Plastic Pollution’). 182 See Resolution 5/14 OP 3(n). 183 Charles Pekow, ‘The World Says Yes to a Cradle to Grave Plastics Treaty: Now the Work Begins’, Mongabay (7 March 2022) . 184 Bryce, ‘World’s Nations Commit to Ending Plastic Waste’. See Resolution 5/14 preamble. 185 McCarthy, ‘First-Ever Global Plastic Pollution Treaty’. See Resolution 5/14 OP 3(b)–(c).

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prevention and addressing the plastic lifecycle.186 Thus, it appears nations will have “wiggle room” in meeting treaty goals conferring discretion upon nations, taking into account their national circumstances, with regard to implementation of certain provisions.187 Paragraph 3, however, notes that the instrument “could include both binding and voluntary approaches, based on a comprehensive approach” which “[accounts]” for “national circumstances and capabilities” in the spirit of common but differentiated responsibility.188 Open-ended working groups as designated would also be able to add new topics that are seen to be relevant, without preventing further discussions on topics not discussed in detail in the current negotiations. These issues could potentially be discussed at subsequent meetings with the goal of creating a more robust plastic treaty, noting the schedule for INC meetings over coming years.189

RESPONSE TO ADOPTION OF THE PLASTICS TREATY RESOLUTION Thunderous applause, the loudest cheers, and a standing ovation were reserved for the Resolution to end plastic pollution. It is “the beginning of the end of the scourge of plastic pollution,” a delegate eloquently stated. “This is our Paris!” exclaimed another, recalling UNEP Executive Director’s prophecy from the beginning of the week.190 Lord Zac Goldsmith, UK Government Minister for International Environment, reflecting the excitement at UNEA-5.2, said that “the agreement by governments at UNEA is truly historic”, and congratulated the UK for their involvement in achieving the adoption of the Resolution. Similarly, Espen Barth Eide, President of the UNEA, described the passing of this resolution as a “cure” for the “epidemic” that is the plastic pollution crisis.191 Drawing analogies to other environmental instruments, Inger Anderson, the

Pekow, ‘Expert Q&A on the Promise of a Global Agreement’. Ibid. 188 Resolution 5/14 paragraph 3. 189 Siddharth Ghanshyam Singh, ‘False solutions, green washing may put dampener on historic global plastic treaty’, Down To Earth (4 March 2022). See IISD, ‘Plastic Pollution INC-1’ 28 November–2 December 2022 (2022) . See the Provisional Agenda for INC-1, UNEP, 28 November–2 December 2022, hosted by UNEP in Punta del Este, Uruguay, UNEP/PP/ INC.1/1 (7 September 2022), Provisional agenda . 190 Ibid, 2–3. 191 James Aushworth, ‘Treaty to End Plastic Pollution Moves a Step Closer’, Natural History Museum, News (8 March 2022) . 192 Phipps, ‘Pause for Celebration’; Briggs, ‘Green Light for “Historic” Treaty’. 193 International Institute for Sustainable Development (IISD) Reporting Services, ‘UNEA-5.2 Highlights: Monday 28 February, 2022’. 194 Pekow, ‘Expert Q&A on the Promise of a Global Agreement’. 195 Ibid. 196 Ibid. 197 Ibid. 198 Ibid. 199 Charles Pekow, ‘The World Says Yes to a Cradle to Grave Plastics Treaty: Now the Work Begins’, Mongabay (7 March 2022) . 200 United Nations Environment Programme, ‘Historic Day in the Campaign to Beat Plastic Pollution: Nations Commit to Develop a Legally Binding Agreement’ (Press

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After the COW finalized the draft resolution, Peru thanked Rwanda, Japan and India as the original drafters of the resolution, and lauded delegates for their commitment to deliver a binding instrument to combat plastic pollution.201 Furthermore, Modesto Montoya, Peru’s Minister of Environment also outlined: “[w]e appreciate the support received from various countries during this negotiation process” and that “Peru [would] promote a new agreement that prevents and reduces plastic pollution, promotes a circular economy and address[es] the full life cycle of plastics.”202 Although some of the members of International Council of Chemical Associations (ICCA) had advocated for an agreement focused on waste as opposed to plastic production, the ICCA stated it was “pleased with the outcome” at UNEA-5.2, noting that the resolution provides nations: “with the flexibility to identify binding and voluntary measures across the full lifecycle of plastics, while recognising there is no single approach to solving this global challenge.”203However, there was concern expressed by industry representatives since the resolution goes beyond merely addressing recycling and reusing plastics, with it making reference to extraction of chemicals used in plastic production, hence having the ability to adversely affect the oil and chemical industries.204 Despite this concern, the resolution does not directly address restrictions or bans on plastic production, simply making reference to “sustainable production”,205 though given the broad mandate of the INC, imposing restrictions on production may be possible. Following UNEA-5.2, statements have been made from the government, NGOs, and the UNEP, reflecting a commitment to advocate for an ambitious and comprehensive plastics treaty until it is finalized. A press release from the UK Department for Environment, Food & Rural Affairs outlined, there

Release, 2 March 2022) (United Nations Environment Programme, ‘Historic Day in the Campaign to Beat Plastic Pollution’). 201 International Institute for Sustainable Development (IISD) Reporting Services, ‘UNEA-5.2 Highlights: Monday 28 February, 2022’. 202 United Nations Environment Programme, ‘Historic Day in the Campaign to Beat Plastic Pollution’. 203 Angeli Mehta, ‘World Agrees to Sign Up to a Treaty to Control Plastic and Chemical Pollution’, Chemistry World (5 March 2022) . 204 Pekow, ‘Expert Q&A on the Promise of a Global Agreement’. 205 See End Plastic Pollution: Towards an International Legally Binding Instrument 3.

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is, “much to be done now to [create] an ambitious and far-reaching treaty.”206 This sentiment was reflected by a statement by Graham Forbes, Global Plastic Project Lead at Greenpeace USA, who outlined the resolution is a “really momentous agreement”,207 but that its adoption at UNEA-5.2 “is really the beginning of the process, and [u]ntil a strong global treaty is signed, sealed, and delivered, Greenpeace and its allies will keep pushing for a world free of plastic pollution, with clean air and a stable climate”.208 Specifically, Greenpeace will be “scaling up [its] efforts to communicate with governments, to pressure corporations to support the treaty” with plans to push for developed Northern Hemisphere nations including the USA and the EU to provide financial and technical support to developing nations.209 Similarly, Inger Andersen, Executive Director of the UNEP, stated that the INC’s mandate “does not grant any stakeholder a two-year pause” and like for negotiations of any international binding agreement, the: “UNEP will work with any willing government and business across the value chain to shift away from single-use plastics, as well as to mobilize private finance and remove barriers to investments in research and in a new circular economy”.210 Carroll Muffett, the president of the U.S.-based Center for International Environmental Law (CIEL) said that “the commitment to make a legally binding plastics treaty [evinced by the passing of the resolution at UNEA-5.2] signalled an important shift in political and public debate”,211 with Ms Muffett suggesting that “it means that the era of unrestricted plastic production, use and disposal has a limited lifetime”,212 and that “everyone working in those sectors are going to have to address that reality very soon [or else] … a new litigation risk will arise,”213 when the treaty comes into effect. Similarly, Graham Forbes, Global Plastic Project Lead at Greenpeace USA outlined on 2 March 2022 that the passing of the resolution would have the effect of “keep[ing] the pressure

206 Defra Press Office, ‘UK Supports Global Action to Tackle Plastic Pollution at UN Environment Assembly’ (Press Release, 3 March 2022) . 207 Pekow, ‘Expert Q&A on the Promise of a Global Agreement’. 208 Hellen Dena, Greenpeace, ‘Global Plastics Treaty: Big, Bold Step to End Plastic Pollution’ (Press Release, 2 March 2022) https://​www​.greenpeace​.org/​africa/​en/​press/​ 50570/​global​-plastics​-treaty​-big​-bold​-step​-to​-end​-plastic​-pollution/​ (Dena, ‘Big, Bold Step to End Plastic Pollution’). 209 Pekow, ‘Expert Q&A on the Promise of a Global Agreement’. 210 ‘UN Resolution to Beat Plastic’. 211 Kaminski, ‘Rush of Lawsuits over Plastic Waste Expected’. 212 Ibid. 213 Ibid.

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on big oil and big brands to reduce their plastic footprint and switch their business models to refill and reuse”.214 Considering the impact on industry, Christopher Chin, an expert on single-use plastic legislation and executive director of the non-profit Centre of Oceanic Awareness, stated that the broad wording of the resolution surrounding the “full life cycle” of plastics, depending on when the life of plastic “begins”, may not only affect the plastic production industry but also fossil fuel companies,215 which have not previously been implicated in dialogue concerning the plastic crisis.216

CREATING AN INTERGOVERNMENTAL NEGOTIATING COMMITTEE The Resolution to “end plastic pollution” adopted at UNEA-5.2 requested the UNEP’s executive director to convene an INC, a team of negotiators from a variety of geographical regions,217 to develop an international legally binding instrument on plastic pollution, “based on a comprehensive approach that addresses the full lifecycle of plastic.”218 To that end the ad hoc OEWG convened both in-person in Dakar and Senegal, and online from 30 May–1 June 2022, with all members of the UN General Assembly and interested stakeholders invited219 with a mandate to create a procedural foundation for the work of the INC. The group was expected to address two issues: creating the rules of procedure (how will decisions be made, how would any bureau be structured, who will participate in meetings and how they will engage with the process) to govern the INC’s future work and decision-making; and the INC’s meeting schedule over the next few years.220

Dena, Greenpeace, ‘Big, Bold Step to End Plastic Pollution’. Bryce, ‘World’s Nations Commit to Ending Plastic Waste’. 216 Ibid. 217 Pekow, ‘Expert Q&A on the Promise of a Global Agreement’. 218 Paul Hagen et al, ‘Negotiations to Launch on a New Global Plastics Treaty’ (2022) 12(62) National Law Review 1, 1 (Hagen et al, ‘Negotiations to Launch on a New Global Plastics Treaty’). See End Plastic Pollution: Towards an International Legally Binding Instrument 2. 219 International Institute for Sustainable Development, ‘UNEA Launches Negotiation of Plastic Pollution Treaty’. See also End Plastic Pollution: Towards an International Legally Binding Instrument 4. 220 CIEL, ‘Wins for Public Participation in Plastics Treaty Negotiations at Agenda and Rule-Setting Meeting’, 2 June 2022 ; IIED, ‘Summary of the Ad hoc Open-ended Working Group to Prepare for the Intergovernmental Negotiating Committee to Develop an International Legally Binding Instrument on Plastic 214 215

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In her opening address, Inger Andersen, Executive Director of UNEP, spoke of the global consensus that existed to ameliorate plastic pollution in an expeditious manner, and that any negotiating process needed to be science-based, and incorporate a broad range of stakeholders including waste pickers.221 However, such consensus was not readily apparent at the OEWG meeting. The main issue that delegates could not agree on regarding the rules of procedure to be adopted including the voting rights for regional economic integration organizations which remains unresolved. At the close of the OEWG, this rule remained unresolved and was left to be resolved at INC-1. The issue of the detailed set of documents to inform INC-1 also proved contentious. Lesser developed countries (LDCs) wanted to prioritize a dedicated negotiating stream on any treaty’s financial mechanism and on the methods of implementation with other delegates arguing that the relationship of any plastic treaty to other MEAs needed to also be delineated.222 Many delegates wished the INC rules of procedure to be based on the relatively recent negotiations of the Minamata Convention on Mercury (2010 and 2013) and delegates agreed to utilize much of that treaty to guide this new process. However, some members argued that technology that facilitated virtual participation had greatly improved and should be adopted (either in hybrid or online format) to allow delegates to ameliorate the time and financial costs incurred in travelling to such meetings as well as quicken the negotiating process.223 However others argued that this was a “slippery slope” given unstable internet connections could stifle any online participants and meetings should be in person. The matter was not resolved and will be left to INC delegates to decide the matter.224 Delegates also debated which current conventions could prove a template for a plastic treaty. For some the Minamata Convention on Mercury, with its controls on various products should be the appropriate model. Others argued the Paris Agreement on climate template was the ideal example to follow with Pollution, including in the Marine Environment: 30 May–1 June 2022’ (2022) 36(1) Earth Negotiations Bulletin, 1. 221 Paul Omorogbe, ‘World Takes Steps Towards Global Treaty To End Plastic Pollution’, Nigerian Tribune (2 June 2022) . 222 CIEL, ‘Wins for Public Participation in Plastics Treaty Negotiations at Agenda and Rule-Setting Meeting’, 2 June 2022 ; IIED, ‘Summary of the Ad hoc Open-ended Working Group to Prepare for the Intergovernmental Negotiating Committee to Develop an International Legally Binding Instrument on Plastic Pollution, including in the Marine Environment: 30 May–1 June 2022’ (2022) 36(1) Earth Negotiations Bulletin, 1, 10. 223 Ibid, 9. 224 Ibid, 10.

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each state deciding their own policies via nationally determined contributions (NDCs). Again, the issue was not decided with delegates asking that states seek to determine before INC-1 which convention model should be adopted.225 The delegates agreed to a tentative INC meeting timetable over the next two years, although the dates are not currently fixed. The Secretariat had proposed the following dates for INC meetings: the week of 28 November 2022 for INC-1; the end of April 2023 for INC-2; the end of November 2023 for INC-3; early May 2024 for INC-4; and early December 2024 for INC-5. However, delegates would only agree to forward the proposed timetable to INC-1 for consideration.226 The first meeting of the INC is now tentatively to take place in November 2022 in Uruguay.227 Arguably, states made reasonable progress on the INC rules of procedures with an almost clean text being put forth forwarded to the first INC meeting. Also, a number of regions have finalized their bureau representatives to the INCs, and a programme of work has been decided on for the secretariat to work through in the intersessional period before the INC-1 meeting.228 However, key decisions around rules of procedure, negotiating streams, timetables and the modes in which INC meetings should occur have yet to be agreed. These are relatively easy decisions and the failure to resolve them at the OEWG meeting does not bode well for achieving the goal of a complete global plastics treaty by UNEA-6 given the number of difficult decisions on issues such as whether the lifecycle of plastic should be included; who will bear the costs; and the issue of caps on plastic production remaining extant. The INC will also report to the UNEA on its progress over the next two years.229 It is anticipated that a diplomatic conference will occur where the INC’s outcomes will be adopted, and the treaty opened for signature by

Ibid, 10–11. IIED, ‘Summary of the Ad hoc Open-ended Working Group to Prepare for the Intergovernmental Negotiating Committee to Develop an International Legally Binding Instrument on Plastic Pollution, including in the Marine Environment: 30 May–1 June 2022’ (2022) 36(1) Earth Negotiations Bulletin, 4. 227 Ibid, 1, 11. 228 CIEL, ‘Wins for Public Participation in Plastics Treaty Negotiations at Agenda and Rule-Setting Meeting’, 2 June 2022 . 229 International Institute for Sustainable Development, ‘UNEA Launches Negotiation of Plastic Pollution Treaty’. 225 226

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Member States,230 with the INC striving towards completion in early 2024, in time for UNEA-6.231 The Resolution to “end plastic pollution” has given the INC a “broad mandate” to draft a treaty targeting plastic waste of all kinds in all environments including marine plastic waste and microplastics,232 as well as consider any other matters other than those outlined in the draft resolution which are considered relevant.233 The broad mandate of the INC together with the ambitious scope of the resolution, being plastic pollution as opposed to just marine plastic pollution,234 has been praised by civil society groups. since it reduces the likelihood of INC negotiators a “narrow and toothless treaty”. The INC will not be “shackl[ed]” or “limit[ed]” in what it can consider in preparing the treaty,235 and hence being empowered to exercise considerable discretion in completing this task.236 Some of the matters that have been left for the INC to consider and negotiate include: • What qualifies as “plastics” for the purposes of the treaty; • How microplastics should be addressed, noting that microplastics are considered to be plastic pollution as per the Resolution; • Which obligations should be legally binding and which should be addressed by national action plans or voluntary provisions; • How the new treaty will interact with existing environment treaties such as those governing chemicals and recycling of plastics.237 It is anticipated that given the widespread range of interests involved in the plastics sector,238 the INC will adopt a highly collaborative approach in preparing the treaty, drawing upon civil society organizations, and business for their expertise and perspectives.239 Furthermore, the text of the mandate specifically 230 Pekow, ‘Expert Q&A on the Promise of a Global Agreement’; International Institute for Sustainable Development, ‘UNEA Launches Negotiation of Plastic Pollution Treaty’. 231 See End Plastic Pollution: Towards an International Legally Binding Instrument 2. 232 Perry, ‘UN Agrees to Create “Historic” Global Treaty on Plastic Trash’. 233 End Plastic Pollution: Towards an International Legally Binding Instrument 3. 234 Bryce, ‘World’s Nations Commit to Ending Plastic Waste’. 235 Geddie, ‘At Kenya’s Biggest Dump, Urgent Calls for a Global Plastics Treaty’. 236 Geddie and Brock, ‘Big Oil’s Plastic Boom Threatens Pact’. 237 Hagen et al, ‘Negotiations to Launch on a New Global Plastics Treaty’ 2. 238 Steve Fletcher, ‘Expert Q&A on the Promise of a Global Agreement to Reduce Pollution’ The Conversation (online, 4 March 2022) (Fletcher, ‘Expert Q&A on the Promise of a Global Agreement to Reduce Pollution’). 239 Ibid.

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references the contributions of those who earn a living recycling plastics in the informal economy (known as “waste pickers”),240 with this being the first environmental resolution where waste pickers have been mentioned.241 Similarly, the resolution acknowledges the role of indigenous peoples,242 indicating that stakeholders who are disproportionately impacted by plastic waste are to have a seat at INC negotiations.243

CONCLUSION As Espen Barth Eide, UNEA President and Minister of Climate and Environment of Norway, outlined at UNEA-5.2 “[c]ountries [are] increasingly seeing [plastic pollution] as a top-level threat.”244 It is true that we can observe that in only eight years states have agreed to create a global plastic pollution treaty with the laudable if difficult goal of having it completed by UNEA-6 in 2024. It is obvious to all that the current fragmented and poorly regulated international system of patchwork laws covering this field is not up to the task. Further it is heartening that the ambit of the proposed instrument, as set out in the resolution, has widened from a focus on marine plastic pollution to one that considers the lifecycle of plastic which “opens the door” for potential caps on virgin plastic as well as a strong convention which covers all aspects of plastic pollution, both upstream and downstream. At the time of writing, the U.S. is attempting to build a coalition of states that will call for a global plastic treaty based on the 2015 Paris climate accord, which only allows for voluntary national action plans to be the basis for any action. Monica Medina, the U.S. official leading the upcoming treaty negotiations, argues that while the U.S. remains committed to the goal of ending plastic pollution by 2040, she argues that: “The best way is through a Paris-like agreement that helps countries take ambitious action and holds them accountable, let’s them be innovative on finding solutions, and leads to action now and not later.”245 Japan has supported such an approach arguing that a “one-size-fits-all approach” is not appropriate as states have different 240 McVeigh, ‘World Leaders Agree to Draw Up “Historic” Treaty’. See End Plastic Pollution: Towards an International Legally Binding Instrument 3. 241 McVeigh, ‘World Leaders Agree to Draw Up “Historic” Treaty’. 242 See End Plastic Pollution: Towards an International Legally Binding Instrument 3. 243 ‘How to Design an Effective Treaty’. 244 Birnbaum and Kim, ‘Plastics Production is Skyrocketing’. 245 John Geddie and Valerie Volcovici, “Exclusive-U.S. seeks allies as split emerges over global plastics pollution treaty”, Reuters (27 September 2022) .

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“circumstances” and “priorities” towards upstream measures e.g. plastic production, or downstream measures, such as waste collection.246 Opposing such a burgeoning group, in August 2022 20 states, including the UK, Canada, France and Germany, announced the formation of a “High Ambition Coalition To End Plastic Pollution” which will advocate for any convention to include global standards, bans and restrictions on plastic. That position is also supported by the ENGOs who have publicly called for coordinated curbs on virgin plastic production and the creation and implementation universal design standards to increase the recyclability of plastics. However, such potentially stringent measures are being opposed by plastic producers. The companies have been lobbying state governments, in particular the U.S., to not craft any agreement that limits plastic manufacturing.247 For those who believe that the treaty can be crafted by the 2024 deadline, the first INC does not give rise to much optimism on this front. States were unable to agree on either the timeline to be adhered to or the shape of the architecture of the negotiations that would best facilitate access for all delegates. The INC negotiators will need to act quickly and decisively at the remaining meetings if the world is not to be awash in plastic pollution in the years to come.

Ibid. Ibid.

246 247

8. Drafting/developing the components of an effective global plastics treaty INTRODUCTION The transboundary nature of the plastic waste crisis, and its ability to exacerbate other environmental issues including biodiversity loss and climate change, warrants the need to respond to this environmental and human issue as a “common concern of humankind”.1 In addition, there is support for taking a precautionary approach to microplastics,2 and nanoplastics to manage potential risks posed by these substances to human health and the environment.3 Certainly, any new treaty that deals with the issue of global plastic pollution will need to adopt an approach that is cohesive, strong, coordinated and effective and affects land, air and marine plastic pollution.4

1 A distinct International Environmental Law concept, the Common Concern of Humankind (historically referred to as a “common concern of mankind”) applies where the common interest is threatened, including by activities occurring within sovereign states. Chelsea Bowling, Elizabeth Pierson and Stephanie Ratté, United Nations Division for Ocean Affairs and the Law of the Sea, The Common Concern of Humankind: A Potential Framework for a New International Legally Binding Instrument on the Conservation and Sustainable Use of Marine Biological Diversity in the High Seas (UN), 3 . 2 Resolutions and decisions adopted by the United Nations Environment Assembly of the United Nations Environment Programme at its first session on 27 June 2014, 1/6. Marine plastic debris and microplastics, UN Doc UNEP/EA.1/Res.6 (27 June 2014) 21 [1] (UNEP 1/6 Resolution). 3 United Nations Environment Assembly of the United Nations Environment Programme, 2/11. Marine plastic litter and microplastics, 2nd sess, UN Doc UNEP/ EA.2/Res.11 (4 August 2016); Donald McRae, ‘Introduction to the symposium on global plastic pollution’ (2020) 114 AJIL Unbound 192 (McRae, ‘Introduction to the symposium’) 194. 4 Gerry Nagtzaam, Evan van Hook and Douglas Guilfoyle, International Environmental Law: A Case Study Analysis (Routledge, 2020) 592 (‘Nagtzaam, van Hook and Guilfoyle’); Ina Tessnow-von Wysocki and Philippe Le Billon, ‘Plastics at sea: Treaty design for a global solution to marine plastic pollution’ (2019) 100

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Further, a legally binding Convention which addresses ocean-based and land-based sources of maritime plastic pollution and all the phases of the plastics lifecycle including the “production, manufacturing, consumption and disposal” phases should be established.5 It will be proposed that this new instrument should have the concept of the circular economy at its core, with the emphasis on the prevention of waste – i.e. reduction of plastic production and increasing reuse and recycle. The new instrument should contain a mixed bag of binding and voluntary measures, targeting production, consumption, chemical additives, recycling and disposal of plastic waste. It can be partly based on the EU approach to dealing with plastic waste, which centres on the concept of the circular economy. To create sustainable waste management facilities, particularly in less developed countries (LDCs), states will have to have access to technology and capacity-building efforts and any treaty must incorporate such mechanisms.6 Given the nature of the plastic pollution crisis, the UNEA has determined that a, “combination of binding, voluntary and self-regulatory measures are necessary to manage the complexities of the lifecycle of plastics”.7 Further, when designing a plastic treaty, the “lifecycle approach” to stifle plastic pollution from cradle to grave is regarded as an effective method to achieve a circular economy involving the product.8 Therefore, the primary objective should be understood as incorporating a strategy of a circular economy within its remit.9 Environmental Science and Policy 94 (Tessnow-von Wysocki and Le Billon, ‘Plastics at sea’) 100. 5 Tessnow-von Wysocki and Le Billon, ‘Plastics at sea’, 99. 6 Beatriz Garcia, Mandy Meng Fang and Jolene Lin, ‘All Hands On Deck: Addressing The Global Marine Plastics Pollution Crisis in Asia’ (Working Paper No 12, NUS Asia-Pacific Centre for Environmental Law Working Paper, National University of Singapore, February 2019) (Garcia et al, ‘All Hands On Deck’) 26; Elizabeth A Kirk, and Naporn Popattanachai, ‘Marine plastics: Fragmentation, effectiveness and legitimacy in international lawmaking’ (2018) 27 RECIEL 222, 233 (Kirk and Popattanachai, ‘Marine plastics’); Marcus Eriksen, ‘The Plastisphere – The Making of a Plasticized World’ (2014) 27(2) Tulane Environmental Law Journal 152 (Eriksen, ‘The Plastisphere’), 163; Tessnow-von Wysocki and Le Billon, ‘Plastics at sea’, 100. 7 United Nations Environment Assembly of the United Nations Environment Programme, Combatting marine plastic litter and microplastics: An assessment of the effectiveness of relevant international and regional governance strategies and approaches**, UN Doc UNEP/EA.3/INF/5 (15 February 2018), 18. 8 Christopher J Rhodes, ‘Solving the plastic problem: From cradle to grave, to reincarnation’ (2019) 102(3) Science Progress (1916) 218, 219. 9 T G Hugo and S Andresen, ‘Towards a new treaty on plastic pollution – Assessing the relevance of the EU Directive on single-use plastics’ (Report, WWF-Norway/ Fridtjof Nansen Institute, June 2021) (Hugo and Andresen, ‘Towards a new treaty’) 32 .

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The global plastics treaty developed by the INC would ideally be multifaceted and, “address the full lifecycle of plastics, including production, design, and disposal,”10 incentivize the design of reusable and recycle products and materials, and promote sustainable environmentally waste management practices by adopting resource efficient and circular economy approaches.11 Given this scope, the treaty framework will also need to further acknowledge and operate coherently with existing international instruments,12 to ensure a harmonized international framework and reduce potential duplication. The objectives of a holistic treaty could be informed by key instruments such as the Ocean Plastics Charter, UNEA resolution 3/7 on marine litter and microplastics, Osaka Blue Ocean Vision,13 and other critical non-state reports developed by environmental NGOs. One key treaty objective could require the elimination of plastics into the oceans and implementation of a circular economy model to recover plastics back into the value chain.14 These objectives should be supported by timebound, quantitative targets,15 however, timeframes may need to balance environmental protection with the interests of developing states and states with strong ties to plastic production. However, as revealed by the Rwanda-Peru, Japan and India draft resolutions, there is currently a lack of consensus amongst Member States regarding the precise scope and operation of the treaty,16 with some advocating for

10 International Institute for Sustainable Development, ‘UNEA Launches Negotiation of Plastic Pollution Treaty’ (10 March 2022) . 11 Paul Hagen et al, ‘Negotiations to Launch on a New Global Plastics Treaty’, Beveridge & Diamond (online, 2 March 2022) 1 (Hagen et al, ‘Negotiations to Launch on a New Global Plastics Treaty’). 12 Environmental Investigation Agency, Convention on Plastic Pollution, Toward a new global agreement to address plastic pollution (June 2020) 9 . 13 Tallash Kantai and Nadia Sohier Zaman, ‘Fourth Meeting of the Ad-hoc Open-ended Expert Group on Marine Litter and Microplastics: 9-13 November 2020’ (2020) 16(154) Earth Negotiations Bulletin 1, 9. 14 United Nations Environment Assembly of the United Nations Environment Programme, Resolution adopted by the United Nations Environment Assembly on 15 March 2019 – Marine plastic litter and microplastics, 4th sess, UN Doc UNEP/EA.4/ Res.6 (28 March 2019) 1 (UNEP 4/6 Resolution), 1. 15 Tessnow-von Wysocki and Le Billon, ‘Plastics at sea’, 101. 16 ‘How to Design an Effective Treaty’; Adam Vaughan, ‘Countries Agree to End Plastic Pollution in Ambitious Global Treaty’, New Scientist (1 March 2022) (Vaughan, ‘Countries Agree to End Plastic Pollution’).

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a more ambitious treaty than others which will almost inevitably lead to a contentious negotiating process.17

PLASTIC WASTE DEFINITION If the treaty is to be effective then a first order issue is that the concept of “plastic waste” must be clearly and comprehensively defined. The Convention on Prevention of Marine Pollution by Dumping Wastes on other Matter provides a very broad definition of waste and other matter as material and substance of any kind, form or description.18 The definition adopted in the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal is equally broad. Article 2(1) provides that: “Wastes are substances or objects which are disposed of or are intended to be disposed of or are required to be disposed of by the provisions of national law.”19 Plastic waste in a plastic pollution treaty should refer to objects of any kind, form, or description that are made out of plastic. For the purpose of simplicity, and to avoid loopholes, this is the only limitation that should be applied to the term “waste”. This will capture virtually anything made out of plastic that ends up in the marine environment and is unwanted there, including plastic manufactured items and their parts (regardless of whether they are Single Use Plastic (SUP) items; reusable, plastic packaging; or even pre-production plastics, such as nurdles).20

17 United Nations Agrees to Create “Historic” Global Treaty; John Geddie and Joe Brock, ‘“Biggest Green Deal since Paris”: UN to Approve Plastic Treaty Roadmap’, Reuters (online, 3 March 2022) (Geddie and Brock, ‘Biggest Green Deal since Paris’). 18 Convention on Prevention of Marine Pollution by Dumping Wastes on other Matter (adopted 29 December 1972, entered into force 30 August 1975) 1046 UNTS 120, art 3. 19 Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal (adopted 22 March 1989, entered into force 5 May 1992) 1673 UNTS 126, art 2(1). 20 Nurdles are pre-production plastic pellets that are on average smaller than 5mm in size. However, pre-production plastics also come in the form of powders, flakes and even liquids, which may be less visible when discharged into the environment. Because of their small size pre‐production plastics (collectively referred to as “pellets”) can be classified as primary microplastics. Pellets are produced in many colours and colouring can be done at the pre‐production stage or during remanufacturing. Pellets are usually regular in shape; however fine particulate powders have more irregular shapes and sizes. They are the feedstock of the plastics industry, melted and moulded by manufacturing companies into plastic products. OSPAR Commission, OSPAR Background

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If the new plastic treaty is to extend its scope to cover pellets, then they need to be covered under a separate regime (either in a separate protocol or within the text of the treaty itself). This is a distinct plastic material, not yet a manufactured product, not quite a pure polymer, as chemical additives such as thermal stabilizers and colourants are often added to them.21 While pellets are primary microplastics, they cannot be subject to such regulatory mechanisms as phase out and bans, as they are the feedstock of the plastic industry. Nevertheless, they need to be regulated as a pollutant. For example, they can be treated as “dangerous goods”, then, as mentioned above, their handling could be regulated in order to prevent their spills. As with the EU’s SUP Directive, the term “plastic” should be defined as material manufactured with modified natural polymers,22 or plastics manufactured from bio based, fossil or synthetic starting substances as they are not naturally occurring.23 Plastics manufactured with modified natural polymers, or plastics manufactured from bio-based, fossil or synthetic starting substances are not naturally occurring and should therefore be addressed by this Directive. This means that, similarly to the EU approach (as well as that of Canada), there should be no distinction between bio-based or fuel-based plastic and the definition should apply to all plastic waste regardless of its biodegradability status. Moreover, the definition of plastic waste should cover all waste that is made wholly or partly from plastic and there should be no minimal threshold for the plastic content. A treaty that regulates polymers and not just manufactured plastic items or plastic waste, would encourage treatment at the root of the problem. Such a treaty would provide the most comprehensive approach as it would target human health implications from exposure to polymers. Moreover, targeting only some SUP items is not enough to address the problems associated with secondary microplastic. The current EU approach offers a useful framework from which to consider regulation of polymers. The instrument has to also cover plastic polymer raw materials (pre-production plastic material) in any form (including pellets, resin, nurdle, powder, and flakes). One of the recent examples is the U.S. Break Free from

Document on Pre-Production Plastic Pellets (OSPAR, 2018) . 21 Emma Caitlin Hunter et al, ‘Quantification and Characterisation of Pre-Production Pellet Pollution in the Avon Heathcote Estuary/Ihutai, Aotearoa-New Zealand’ (2022) 1 Microplastics 67, 68. 22 The definition of polymer in the REACH Regulation can be utilized. 23 SUP Directive, Preamble, 11.

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Plastic Pollution Bill of 2021, which prohibits the discharge of any form of pre-production plastic materials into the environment.24 Binding or Voluntary Convention? Given the one key objective should be binding (top-down) requirements rather than one that allows voluntary activities to realize its goals.25 A binding Convention is preferred to a non-binding Convention because preventing the manufacture of non-biodegradable products is difficult to enforce; this is because manufacturing non-biodegradable products is cheaper than manufacturing biodegradable products.26 However, a legally binding convention may not attract states to become parties to the Convention; this is because the Convention will infringe upon their sovereignty.27 There should also be an immediate ban on the production of microbeads, which will prevent billions of microplastics entering the marine environment.28 Further, as is happening in many domestic realms, there should be a phasing of single-use plastic bags, Styrofoam, take away cups and containers, plastic straws and produce bags because environmentally sound alternatives currently exist.29 24 A Bill To amend the Solid Waste Disposal Act to reduce the production and use of certain single-use plastic products and packaging, to improve the responsibility of producers in the design, collection, reuse, recycling, and disposal of their consumer products and packaging, to prevent pollution from consumer products and packaging from entering into animal and human food chains and waterways, and for other purposes. . 25 Mona Aarhus et al, ‘Possible elements of a new global agreement to prevent plastic pollution’ (Research Discussion Paper, Nordic Council of Ministers, 18 October 2020) (Aarhus et al, ‘Possible elements of a new global agreement’) 35 . 26 Hannah M Diaz, ‘Plastic: Breaking down the Unbreakable’ (2018) 19(1) Florida Coastal Law Review 85, 95. 27 Nils Simon et al, No More Plastics in the Ocean: Gaps in Global Plastic Governance and Options for a Legally Binding Agreement to Eliminate Marine Plastic Pollution (Adelphi, 2018) (Simon et al, No More Plastics in the Ocean) 33. 28 Stephanie B Borrelle et al, ‘Why we need an international agreement on marine plastic pollution’ (2017) 114(38) Proceedings of the National Academy of Sciences of the United States of America 9994, 9995 (Borrelle et al, ‘Why we need an international agreement’); Mark Gold et al, ‘Stemming the Tide of Plastic Litter: A Global Action Agenda’ (2014) 27(2) Tulane Environmental Law Journal 165 (Gold et al, ‘Stemming the Tide’) 186; Christopher J Rhodes, ‘Plastic pollution and potential solutions’ (2018) 101(3) Science Progress 207, 224. 29 Kirk and Popattanachai, ‘Marine plastics’; Colette Wabnitz and Wallace J Nichols, ‘Editorial: Plastic Pollution: An Ocean Emergency’, Marine Turtle Newspaper (No 129, 2010) 3.

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STRATEGIC GOALS Any agreement will need to enumerate detailed strategic goals including sustainable waste management; the banning and phasing out of problematic products; and the sustainable management of products, incorporating circular economy and technological and product design innovation.30 It will need promote and enhance public awareness on the environment and human health caused by plastic pollution,31 seek to facilitate partnerships with non-state actors,32 reward short-term actions by Member States, which would lead to long-term solutions,33 and create an effective compliance and enforcement mechanism.34

LIFECYCLE AND RECYCLING LIMITATIONS The draft resolution mandates that the INC develop an international legally binding instrument on plastic pollution based on a, “comprehensive approach that addresses the full lifecycle of plastic”.35 Furthermore, the resolution provides for “sustainable production and consumption of plastics”,36 encompassing practices including reusing, recycling, and repurposing of plastics. Although the resolution does not refer to reducing or banning production, WWF and other NGOs have been fervently advocating for a treaty which

30 Peter Dauvergne, ‘Why is the global governance of plastic failing the oceans?’ (2018) 52 Global Environmental Change 22, 29; Tessnow-von Wysocki and Le Billon, ‘Plastics at sea’, 100; Karen Raubenheimer and Niko Urho, ‘Rethinking global governance of plastics – The role of industry’ (2020) 113 Marine Policy 1 (Raubenheimer and Urho, ‘Rethinking global governance of plastics’) 2. 31 Eriksen, ‘The Plastisphere’, 163; Tessnow-von Wysocki and Le Billon, ‘Plastics at sea’, 100; Susan Biniaz, ‘The UNGA Resolution on a “Global Pact for the Environment”: A chance to put the horse before the cart’ (2019) 28 Review of European, Comparative and International Environmental Law 33 (Biniaz, ‘The UNGA Resolution’) 37. 32 Biniaz, ‘The UNGA Resolution’, 37. 33 Tessnow-von Wysocki and Le Billon, ‘Plastics at sea’, 100. 34 Garcia et al, ‘All Hands On Deck’, 27. 35 See End Plastic Pollution: Towards an International Legally Binding Instrument, 2–3. 36 Ibid 3.

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restricts (or even bans) plastic pollution,37 with the goal of ending plastic pollution by 2030.38 To cater for the exponential increase in plastic production anticipated in coming decades, it is imperative that the plastics treaty imposes restrictions on plastic production,39 in particular, single-use plastics, which are incompatible with a circular economy.40 As Steve Fletcher from the University of Portsmouth, UK said, “[t]he best way to tackle plastic pollution is to prevent it in the first place,” calling for the plastics treaty to, “support upstream solutions such as reducing … plastics in products.”41 Similarly, Christina Dixon, the deputy ocean campaign lead at the EIA, outlining the importance of production-based measures, stated that “[t]he [plastics treaty] resolution [passed at UNEA-5.2] finally recognises that we cannot begin to address plastics in our ocean and on land without intervening at [the] source”.42 However, drafting a treaty which directly targets plastics production has been described as a “minefield” by Anne Aittomaki, strategic director of Danish environmental non-profit Plastic Change,43 given the opposition from plastic producers, as well as nations with a large petrochemical industry, who have figuratively conveyed “a better mop” is required instead of “turn[ing] off

37 Michael Birnbaum and Min Joo Kim, ‘Plastics Production is Skyrocketing: A New U.N. Treaty Effort Could Cap It’, Washington Post (8 February 2022) (Birnbaum and Kim, ‘Plastics Production is Skyrocketing’). 38 World Wide Fund for Nature, ‘Global Survey Sees Nearly Nine in 10 People Supporting a UN Plastic Pollution Treaty but Will Governments Follow?’ (Press Release, 22 February 2022) . 39 Alejandra Parra and Claire Arkin, ‘The Time for a Global Plastics Treaty is Now’, Revisita de Prensa (2 March 2022) (Parra and Arkin, ‘The Time for a Global Plastics Treaty is Now’). 40 Charles Pekow, ‘The World Says Yes to a Cradle to Grave Plastics Treaty: Now the Work Begins’, Mongabay (7 March 2022) . 41 Vaughan, ‘Countries Agree to End Plastic Pollution’. 42 Karen McVeigh, ‘World Leaders Agree to Draw Up “Historic” Treaty on Plastic Waste’, The Guardian (3 March 2022) . 43 John Geddie and Joe Brock, ‘Analysis: Big Oil’s Plastic Boom Threatens UN’s “Historic” Pollution Pact’, Reuters (online, 5 March 2022) .

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the tap”.44 Nonetheless, Espen Barth Eide, president of the UNEA, has stressed that “[t]his is not an anti-plastics treaty” but that plastics products are to be incorporated into a “much more viable, circular economy”,45 suggesting that perhaps designing plastics to promote their longevity will be prioritized over restricting or banning production of certain plastics. Regrettably, from UNEA resolutions to global awareness campaigns, plastic has been predominately defined as a, “waste” product at the end of its lifecycle, implying that solutions should also be limited to merely waste management approaches.46 Of note, minimization of plastic waste and waste management were the highest priority solutions of UNEA-3,47 many states advocating for the continued focus on waste management based solutions and technologies known to be harmful to human health and the environment again during UNEA-4.48 Adopting a circular economy approach, where plastics are reused or recycled into valuable material as opposed to discarded, is not only extremely advantageous for the environment but also justified on economic and social grounds. Specifically the UNEP estimates that shifting to a circular economy would lead to a reduction in the volume of plastics entering oceans by over 80% by 2040; reduce virgin plastic production by 55%; save governments US$70 billion by 2040; reduce greenhouse gas emissions by 25%; and create jobs.49 However, it is important to note that reprocessing of plastics can reintroduce

44 Emma Bryce, ‘World’s Nations Commit to Ending Plastic Waste’, The Third Pole (9 March 2022) (Bryce, ‘World’s Nations Commit to Ending Plastic Waste’). 45 John Geddie, ‘At Kenya’s Biggest Dump, Urgent Calls for a Global Plastics Treaty’, Reuters (online, 1 March 2022) . 46 Giulia Carlini and Konstantin Kleine, ‘Advancing the international regulation of plastic pollution beyond the United Nations Environment Assembly resolution on marine litter and microplastics’ (2018) 27(3) Review of European, Comparative & International Environmental Law 234, 242. 47 UNEA ‘Resolution 3/7, Marine Litter and Microplastics’ UN Doc UNEP/EA.3/ Res.7 (6 December 2017), preamble para 9. 48 Centre for International Environmental Law, Progress on Plastics Update Issue 12 (Newsletter, November 2019) 1 ; UNEP, Resolution 2/11: Marine Plastic Litter and Microplastics, UNEP/EA.2/Res.11 (May 2016) 3. 49 ‘UN Resolution to Beat Plastic’ (4 March 2022) Sustainability Matters (‘UN Resolution to Beat Plastic’).

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toxic chemicals into the environment, and hence should be currently avoided until the processes involved are improved, as outlined by Bjorn Beeler, general manager of the International Pollutants Elimination Network (IPEN).50 Striving towards a circular economy could be achieved if virgin based plastics, which are currently valueless post-use,51 were replaced with more sustainable alternatives, composed of valuable materials, thereby incentivizing reuse and recycling.52 Sustainable design of products and materials was flagged as an important matter in the draft resolution.53 An extended producer responsibility (EPR) scheme in the treaty, whereby the cost of waste is built into production, or a tax imposed on virgin plastic products,54 may also serve as an effective economic mechanism to incentivize use of sustainable alternatives over virgin plastics.55 Therefore the concept of a circular economy has much to offer in this space.56 Because of the complexity of plastic pollution, the best method to reduce pollution and achieve a circular economy is to regulate the plastic lifecycle and value chain.57 The lifecycle of plastic has three stages: upstream, midstream, and downstream,58 and the relevant plastic value chain includes: (1) production with raw plastic materials; (2) design and manufacture of plastic products; (3) use or reuse in the consumption market; (4) waste management and recycling process; (5) end-to-life and discharges to the environment.59

50 Hellen Shikanda, ‘Experts Urge Inclusion of Dangers of Chemicals in Plastics Treaty’, Nation (2 March 2022) (Shikanda, ‘Experts Urge Inclusion of Dangers of Chemicals in Plastics Treaty’). 51 Bryce, ‘World’s Nations Commit to Ending Plastic Waste’. 52 Steve Fletcher, ‘Expert Q&A on the Promise of a Global Agreement to Reduce Pollution’ The Conversation (online, 4 March 2022) (Fletcher, ‘Expert Q&A on the Promise of a Global Agreement to Reduce Pollution’). 53 End Plastic Pollution: Towards an International Legally Binding Instrument 2. 54 Bryce, ‘World’s Nations Commit to Ending Plastic Waste’. 55 Ibid. 56 Hugo and Andresen, ‘Towards a new treaty’, 32. 57 Lorren de Kock et al, ‘A circular economy response to plastic pollution: Current policy landscape and consumer perception’ (2020) 116 (5-6) South African Journal of Science 18 (de Kock et al, ‘A circular economy response’) 19. 58 Aarhus et al, ‘Possible elements of a new global agreement’, 50. 59 Ida M Steensgaard et al, ‘From macro- to microplastics – Analysis of EU regulation along the life cycle of plastic bags’ (2017) 224 Environmental Pollution (1987) 289, 290.

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Any such strategic goals will need to integrate the entire “lifecycle of plastics” within its approach.60 Therefore, the provision of scope in a plastic treaty should consider addressing plastic pollution from the lifecycle way, including: (a) the source of plastic pollution: from land-based or sea-based plastic; (b) pathway to the environment: the pollution on terrestrial, atmosphere, ocean or freshwater; (c) management scope: upstream of production, midstream of design and consumption, downstream of waste management; (d) geographic scope: national jurisdiction, transboundary jurisdiction, beyond national jurisdiction (high sea and Antarctica).61 Utilizing the circular system could change the current linear lifecycle of plastic to a sustainable development mode. Firstly, a new treaty should mandate that wherever possible, durable plastic products be reused. For single-use plastic, such as plastic bottles and bags, they can be reused by chemical recycling or by being altered into secondary raw materials, thus beginning their second phase as part of the plastic lifecycle.62 At the disposal phase, the Convention should oblige parties to improve their waste management systems by identifying the amount of plastic waste not properly collected and require them to create policies to increase plastic waste collection rates.63 These waste management systems should align with the waste hierarchy and encourage parties to incorporate policies to prioritize prevention ahead of minimization, reuse and recycling.64 The Convention’s fostering nature amongst parties is beneficial because the Convention will “promote best-practices” which parties can adopt in their actions plans.65 These action plans and progress reports will be publicly reported to ensure that parties are held accountable and scrutinized for non-compliance. This is because publicly available reports will enable the public to determine whether their State is compliant with the Convention; this is akin to target 12.6 of the Sustainable Development Goals (SDGs)

Raubenheimer and Urho, ‘Rethinking global governance of plastics’, 2. Aarhus et al, ‘Possible elements of a new global agreement’, 41. 62 UNIDO, Addressing the challenge of Marine Plastic Litter using Circular Economy methods (April 2019) 32. 63 Ibid 101. 64 Raubenheimer and Urho, ‘Rethinking global governance of plastics’, 5. 65 Torbjorn Graff Hugo, ‘The case for a treaty on marine plastic pollution’ (2018) Norwegian Academy of International Law 16–17 (Hugo, ‘The case for a treaty on marine plastic pollution’). 60 61

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which requires corporations to “integrate sustainability information into their reporting cycle”.66 If the public perceives that the state is non-compliant, the state will face political pressure from the public; this is because the public may protest and develop propaganda which may damage their government’s ability to remain in office for the following term. Improving the waste management capabilities of developing nations will also incidentally improve their domestic economy’s because recycling creates local jobs and reduces imports.67 For unrecyclable plastic, the treaty should establish the disposal procedure to standardize the end-of-life process. The waste management process should also classify different plastics and analyze the environmental cost for discharge, like the cost of cleaning up, transport and storage for each type.68 There should also be a provision of labelling classification to guide consumers to choose plastic goods according to the different plastic labels of “compostable, biodegradable, bio-based, etc.”69 Consumers could play an important role if they are made aware of such plastic classification and seek to move away from virgin or non-biodegradable plastic. The WWF argue that if consumers buy environmentally friendly plastic products, it would affect the action of producers and designers in turn.70

PENALTIES Optimistically, harsh penalties should be set to deter parties contravening the Convention; this is because existing penalty schemes – such as MARPOL Annexure V’s penalty scheme – have been inadequate to prevent unlawful behaviour.71 However, it should be recognized states will be less likely to become parties to the Convention if a harsh penalty scheme was incorporated because of the “high military, economic or political costs” on the sanctioning state.72

66 Transforming Our World: the 2030 Agenda for Sustainable Development, opened for signature 2015, A/Res/70/1. 67 Joana C Prata et al, ‘Solutions and Integrated Strategies for the Control and Mitigation of Plastic and Microplastic Pollution’ (2019) 16(13) International Journal of Environmental Research and Public Health 2411 (Prata et al, ‘Solutions and Integrated Strategies’) 2419. 68 Aarhus et al, ‘Possible elements of a new global agreement’, 54. 69 Ibid, 53. 70 de Kock et al, ‘A circular economy response’, 20. 71 Gold et al, ‘Stemming the Tide’, 184. 72 Tessnow-von Wysocki and Le Billon, ‘Plastics at sea’, 100.

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FUNDING/PLASTIC FUND With implementing a global international framework such as this, there must be an effective level of funding to ensure developing states implement mechanisms to prevent mitigate plastic pollution.73 States can also incentivize the minimization of plastic production/waste by taxing plastic products, with their revenue going into an Environmental Protection Fund.74 Further, support through technology transfer and scientific funding is necessary to fill the gap between scientific innovation and commercial application currently extant.75 Technical and financial transfer mechanisms are critical for supporting effective implementation of treaty actions.76 The treaty should also establish an effective financial and technical assistance mechanism, as provided for in the draft resolution adopted at UNEA-5.2.77 Specifically, the financial and technical scheme should direct funding, and arrange for capacity-building, technical assistance and technology transfer,78 to developing nations so they are able to implement the treaty, by, inter alia, improving waste collection, and recycling infrastructure, thereby eliminating the need to undertake the damaging practice of plastic incineration.79 The requirement for financial and technical assistance was articulated by Colombia Lawyer, Mónica de Greiff Lindo, speaking on behalf of the G77 and China at UNEA-5.2, who stressed that developing nations must be a recipient of this assistance from developed nations to transition to sustainable consumption and production systems.80

Ibid, 101; Borrelle et al, ‘Why we need an international agreement’, 9996. Allyssa Rose, ‘A Solution to Plastic Pollution? Using International Law to Shape Plastic Regulation in the United States’ (2020) 26 Hastings Environmental Law Journal 127, 145. 75 Pew Charitable Trust and SYSTEMIQ, ‘Breaking The Plastic Wave Report’ (Report, PEW, 23 July 2020) 103 (Pew Charitable Trust and SYSTEMIQ, ‘Breaking The Plastic Wave Report’). 76 W Bradnee Chambers, ‘Towards an Improved Understanding of Legal Effectiveness of International Environmental Treaties’ (2004) 16(3) Georgetown International Environmental Law Review 501 (Chambers, ‘Towards an Improved Understanding’) 531. 77 Fletcher, ‘Expert Q&A on the Promise of a Global Agreement to Reduce Pollution’. 78 End Plastic Pollution: Towards an International Legally Binding Instrument 2. 79 Fletcher, ‘Expert Q&A on the Promise of a Global Agreement to Reduce Pollution’. 80 Bryce, ‘World’s Nations Commit to Ending Plastic Waste’. 73 74

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However, like with the Paris agreement on climate change,81 there is a lack of consensus amongst Member States regarding how the financial assistance mechanism should operate so its efficacy in ensuring developing nations are aided with improving infrastructure is maximized.82 The INC has been specifically requested as outlined in the draft resolution to consider “the need for a financial mechanism to support the implementation of the instrument, including the option of a dedicated multilateral fund”.83 Andrès del Castillo, senior attorney for CIEL, stressed that creativity will be required when designing the financial mechanism, and proposed that funding may be sourced from taxes imposed on certain industries.84 For example, major plastic producers may be taxed to provide financial aid to nations which are least responsible for the plastic waste crisis, though are significantly affected.85 A similar system exists under the Montreal Protocol via the Multilateral Fund, which provides financial and technical assistance to developing nations to meet their treaty obligations.86 Crucially, every U.S. Administration has contributed to the Multilateral Fund under the Protocol, even if opposed to international environmental agreements,87 indicating its efficacy even amongst nations and governments with political ideologies antithetical to global cooperation on environmental issues. A financial mechanism could thus be used for a range of purposes such as assisting developing states to implement and comply with treaty obligations,88 and more broadly supporting remediation activities to address existing plastics accumulating in the environment.89 Acknowledging society’s reliance on plastics, a financial mechanism could also support research into product innovation and cost-effective alternatives,90 for example, to support a transition to more 81 Fletcher, ‘Expert Q&A on the Promise of a Global Agreement to Reduce Pollution’. 82 Helen Briggs, ‘Plastic Pollution: Green Light for “Historic” Treaty’, BBC News (online, 2 March 2022) . 83 See End Plastic Pollution: Towards an International Legally Binding Instrument 3. 84 Charles Pekow, ‘The World Says Yes to a Cradle to Grave Plastics Treaty: Now the Work Begins’, Mongabay (7 March 2022) . 85 Parra and Arkin, ‘The Time for a Global Plastics Treaty is Now’. 86 Ibid. 87 Ibid. 88 EIA Proposed Plastic Convention Report, 11. 89 EIA Proposed Plastic Convention Report, 8. 90 John Duncan et al, ‘The Business Case for a UN Treaty on Plastic Pollution’ (Report, WWF, The Ellen MacArthur Foundation and BCG, 26 October 2020) 21 (Duncan et al, ‘The Business Case for a UN Treaty’) 22 .

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bio-based and biodegradable plastics which currently make up only 1% of plastics produced.91 Noting the risks of ineffective plastic waste infrastructure, technology transfer mechanisms could prioritize provision of plastic-recycling technology to states overwhelmed with existing quantities of plastic waste.92 Treaty parties would be required to contribute funds towards these mechanisms based on an appropriate formula.93 In light of state contributions to plastic pollution and the distribution of impacts, the polluter pays principle may be an appropriate method to fund these mechanisms.94 The Rio Declaration promotes application of this principle and seeks states to internalize environmental costs onto the polluter in consideration of public interest and relevant economic and trade impacts.95 Extended producer responsibility schemes provide a practical application of this principle and could support the shift towards a circular economy by funding plastics collection, sorting and recycling,96 and encouraging producers to design products to maximize their collection and recycling ability. Payments into the fund may also be influenced by the financial capacity of states to respond to plastic pollution.97 Provision of an implementation support structure would provide a platform for cooperation amongst state parties, encouraging the exchange of technical know-how and best practice via formalized knowledge exchange networks.98 Currently, developing states may not choose to become parties to any Convention because they do not have the technical capacity, infrastructure and financials to improve their waste management system. To encourage developing nations to become parties to the Convention, the Convention should create

91 Tobias Nielsen et al, ‘Politics and the plastic crisis: A review throughout the plastics life cycle’ (2019) 9(1), WIREs Energy and Environment 1, 4. 92 Elizabeth Kirk, ‘The Montreal Protocol or Paris Agreement as a model for a plastics treaty?’ (2020) 114 AJIL Unbound 212 (Kirk, ‘The Montreal Protocol or Paris Agreement?’) 213. 93 Duncan et al, ‘The Business Case for a UN Treaty’, 22. 94 EIA Proposed Plastic Convention Report 11. 95 Report of the United Nations Conference on Environment and Development (Rio de Janeiro 3–14 June 1992), UN Doc A/CONF.151/26 (Vol. I) (12 August 1992) art 16. 96 Ellen McArthur Foundation, The Global Commitment 2020 (Progress Report, 2020), 19 . 97 Tessnow-von Wysocki and Le Billon, ‘Plastics at sea’, 101. 98 CIEL, ‘Thought starter for a new global convention with a multi-layered governance approach to address plastic pollution’ (Policy Brief, November 2018) 4 (CIEL, ‘Thought starter’).

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such a multilateral fund.99 This fund will be directed at improving the waste management system of developing nations.100 States could look to the success of the Multilateral Fund (MLF) created under the Montreal Protocol which has proved so successful in achieving the targets set under that instrument.101 The MLF was created to mitigate the tension between developed and developing states.102 Any such created fund would need to facilitate technology, capital, expertise, and products to developing countries where they can afford to change their behaviours.103 How much each state contributes could be measured on the capacity to implement and contribute to sustainable waste management104 or by the damage inflicted. Further, a “clean-up fund” has been suggested as part of a global governance model, to be funded via contributions from both importers and exporters of plastics.105 Such a fund would be similar to the system already in place with regards to importers and exporters of oil, who contribute to a fund used “to address harm from oil spills.”106 Drawing from the experience of the International Fund for Compensation for Oil Pollution Damage, a similar “Plastic Fund” could help to address legacy plastic.107 The source of the “Plastic Fund” may derive from the donation of parties, charity organizations, producers and exporters of plastic wastes, or the tax revenue of each step of Tessnow-von Wysocki and Le Billon, ‘Plastics at sea’ 101. Ibid. 101 The Montreal Protocol on Substances that Deplete the Ozone Layer, open for signature 16 September 1987, 1522 UNTS 29 (entered into force 1 January 1989); Tessnow-von Wysocki and Le Billon, ‘Plastics at sea’, 101; Nagtzaam, van Hook and Guilfoyle, 196. 102 Nagtzaam, van Hook and Guilfoyle, 196; Allyssa Rose, ‘A Solution to Plastic Pollution? Using International Law to Shape Plastic Regulation in the United States’ (2020) 26 Hastings Environmental Law Journal 127, 128; Elizabeth R DeSombre, ‘The Experience of the Montreal Protocol: Particularly Remarkable, and Remarkably Particular’ (2001) 19(49) Journal of Environmental Law 49 (DeSombre, ‘The Experience of the Montreal Protocol’) 71. 103 Nagtzaam, van Hook and Guilfoyle, 196; Donald M Goldberg, ‘The Montreal Protocol Multilateral Fund: A Model for the Framework Convention on Climate Change’ (1993) 16 International Environmental Report 233, 233 (Goldberg, ‘The Montreal Protocol Multilateral Fund’); Jason M Patlis, ‘The Multilateral Fund of the Montreal Protocol: A Prototype for Financial Mechanisms in Protecting the Global Environment’ (1992) 25(1) Cornell International Law Journal 181 (Patlis, ‘The Multilateral Fund of the Montreal Protocol’) 182. 104 Tessnow-von Wysocki and Le Billon, ‘Plastics at sea’, 101; Raubenheimer and Urho, ‘Rethinking global governance of plastics’. 105 Tessnow-von Wysocki and Le Billon, ‘Plastics at sea’, 101; Raubenheimer and Urho, ‘Rethinking global governance of plastics’. 106 Ibid. 107 Kirk and Popattanachai, ‘Marine plastics’, 233. 99

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the plastic lifecycle. The aim of the “Plastic Fund” is not only to achieve the goal of common but differentiated responsibility for developing countries but also to help to compensate states that suffered unpredictable and accidental plastic pollution. A tax on plastic products could also be considered.108 To determine the contributions of each nation, the agreement could consider the “polluter pays” principle as an underlying organizing principle.109 This principle could be combined with equitable considerations such as state or corporate wealth, to ensure that those who benefit the most from plastic pollution and those who have the resources available to combat it contribute the most. Such a fund could be used to provide financial support where required to ensure that all countries are able to participate in the agreement, regardless of their financial resources. Such financial support has been proposed by the Environmental Investigation Agency since developing states may require financial support, “to monitor and report, develop national policy and build capacity to address plastic pollution.”110 Incorporation of a global fund could additionally provide financial support to states to implement their national action plans, particularly where they lack the national architecture and resources to do so, as well as resolve the lack of a global compensatory mechanism for damage resulting from plastic litter and microplastics.111 Any such plastic multilateral fund will be funded from EPR systems and tax levies which the Convention will oblige governments to implement. Under the EPR system, companies that manufacture non-biodegradable plastic products will be responsible for the products collection and treatment at the end of the products life.112 Plastic products will be available in the market “if it meets the design, reuse and recycling requirements” listed in the Convention;113 a percentage of products must be “recyclable into marketable products in

108 Tessnow-von Wysocki and Le Billon, ‘Plastics at sea’, 101; Raubenheimer and Urho, ‘Rethinking global governance of plastics’. 109 See, e.g., Jonathan Remy Nash, ‘Too much market: Conflict between tradable pollution allowances and the polluter pays principle’ (2000) 24(2) Harvard Environmental Law Review 465, 466. 110 Environmental Investigation Agency. 111 UNEP, Combating Marine Plastic Litter and Microplastics Summary for Policymakers: An Assessment of the Effectiveness of Relevant International, Regional and Subregional Governance Strategies and Approaches (2017) 92. 112 Gold et al, ‘Stemming the Tide’,193. 113 Karen Raubenheimer and Alistair Mcllgorm, ‘Can the Basel and Stockholm Conventions provide a Global Framework to reduce the Impact of Marine Plastic Litter?’ (2018) 96 Marine Policy 1 (Raubenheimer and Mcllgorm, ‘Can the Basel and Stockholm Conventions?’) 8.

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compliance with community standards”.114 For instance, this may cause cosmetic industries to replace non-biodegradable microbeads with “biodegradable cellulose microbeads” which may reduce maritime plastic pollution.115 These companies must annually report percentage decreases on waste generated.116 Additionally, these companies will be liable to pay into the multilateral fund an amount based on their share of non-biodegradable plastic products manufactured in the market.117 Whereas, if the Convention obliged states to levy taxes on raw materials – such as a 10% tax on the fossil fuel sources – used for producing non-biodegradable plastic products, companies will become incentivized to manufacture biodegradable products.118 This is because these companies will internalize the costs attributable to the tax into the price of their non-biodegradable products. As a result, the EPR system and tax levies imposed will incentivize companies to change their products at the design phase and encourage these companies to manufacture biodegradable plastic products;119 the design phase is the most crucial phase of the products life cycle because this phase determines the “product’s functionality and environmental impact”.120 By these systems attempting to internalize the costs of “preventing, controlling and recovering” non-biodegradable products, manufacturers will produce biodegradable products because they are cost-competitive and are more environmentally friendly.121 These financial mechanisms could also be used to fund the extraction of marine litter in the high seas. For instance, a multilateral fund could be established to assist the Japanese scientists project of developing bacteria that can decompose polyethylene terephthalate plastic.122 The bacteria could be implemented in the five gyres to reduce plastic pollution in the maritime environment.

Ibid, 9. Luisa Goncalves and Michael Faure, ‘International Law Instruments to Address the Plastic Soup’ (2019) 43(3) William & Mary Environmental Law and Policy Review 871 (Goncalves and Faure, ‘International Law Instruments’) 889. 116 Raubenheimer and Mcllgorm, ‘Can the Basel and Stockholm Conventions?’, 9. 117 Ibid, 8. 118 Prata et al, ‘Solutions and Integrated Strategies’, 2419. 119 Leila, Monroe, ‘Tailoring Product Stewardship and Extended Producer Responsibility to Prevent Plastic Pollution’ (2014) 27 Tailoring Environmental Law Journal 220, 230. 120 Ibid; Jack Jeswiet and Michael Zwicky Hauschild, ‘EcoDesign and Future Environmental Impacts’ (2005) 26(7) Materials and Design 629, 631. 121 Hugo, ‘The case for a treaty on marine plastic pollution’, 7. 122 Goncalves and Faure, ‘International Law Instruments’, 889, 890. 114 115

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However, states may not want to become parties to the Convention because the EPR system and tax levies infringe upon their sovereignty and economy;123 this is because these mechanisms will reduce their gross domestic product because total production will reduce due to production costs being relatively more expensive. However, states will only become parties to the Convention if they perceive the benefits of compliance with the Convention to outweigh the benefits of non-compliance.124 As such, akin to the Basel Convention, the Convention could oblige parties to only engage in trading biodegradable products with each other; this may prevent the free-rider problem because states will perceive the disadvantages of non-compliance to be too great because they are prohibited from trading biodegradable products with states who are parties to the Convention.125 Nevertheless, these biodegradable products may reduce maritime plastic pollution because these products can disintegrate and convert into “water, CO2, methane and biomass”.126 However, although biodegradable products disintegrate within 180 days under “conditions in industrial composting facilities with prolonged temperatures above 50°C, or under constant exposure to UV lights”, these products degrade similarly to non-biodegradable products when disposed inappropriately into the sea;127 this is because the ocean’s temperature is below 50°C and biodegradable products may be immersed in the ocean, hidden from sunlight. As a result, biodegradable products degrade comparably and affect the maritime wildlife similarly to non-biodegradable products when immersed in the ocean;128 this is because aquatic species may die as a result of ingesting and becoming entangled in biodegradable products. Biodegradable polymers – such as oxo-biodegradable polymers – “may [also] harm recycling and composting programs” because they “are not compatible with current technologies”.129 Furthermore, biodegradable product industries may damage the environment because they will compete with the biofuel and food industries to exploit agricultural resources.130

Simon et al, No More Plastics in the Ocean, 33. Ibid, 37. 125 Ibid, 37 126 João S C Viera et al, ‘On Replacing Single-use Plastic with so-called Biodegradable Ones: The Case with Straws’ (2020) 106 Environmental Science and Policy 177 (Viera et al, ‘On Replacing Single-use Plastic’) 178. 127 Simon et al, No More Plastics in the Ocean, 22. 128 Viera et al, ‘On Replacing Single-use Plastic’. 129 Ibid, 178. 130 Simon et al, No More Plastics in the Ocean, 23. 123 124

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The GEF vs MLF Another source of funding potentially available or a potential funding mechanism for any emerging plastic treaty is the Global Environmental Facility (GEF) set up under the auspices of the UNFCCC. The GEF allows states and the private sector to engage in projects that deliver environmental benefits and promote sustainable development.131 The GEF can assist developing countries in many ways, including building local capacity, and distributing appropriate technologies and measures.132 Developed countries have traditionally preferred the GEF to be the main financial mechanism, whereas, developing states prefer the Multilateral Fund (MLF) to be the main mechanism. Goldberg argues that a MLF is the better model to address plastic pollution for four reasons. One, the membership of the MLF is universal (all states are eligible), whereas, the GEF requires a contribution of SDR 4 million. Two, the MLF is considered a more transparent body compared to the GEF. The World Bank manages the GEF, which has been criticized for not disclosing information regarding its operation, projects approved, and projects the GEF regularly invests in. Three, voting in the MLF allows for effective decision-making and promotes equal participation by developed and developing countries. The GEF’s structure allows states to block projects they do not agree with. Four, the GEF has been criticized for how it disburses its funds given it does not separate project funding.133

ENFORCEMENT AND COMPLIANCE/MONITORING As Inger Andersen, the Executive Director of the UNEP said at UNEA-5.2, “an agreement will only count if it is legally binding.”134 This sentiment was echoed in the draft proceedings to UNEA-5.2 which stated: “[t]he decisions to launch negotiation on [a plastics agreement] would constitute a truly historic outcome of the current session, but only if Member States decided that the

131 Soledad Aguilar, ‘The Global Environment Facility’ (2011) 22(1) Yearbook of International Environmental Law 612, 613; Laurence Boisson de Chazourness, ‘The Global Environment Facility (GEF): A Unique and Crucial Institution’ (2005) 14(3) Review of European, Comparative and International Environmental Law 193, 199. 132 Laurence Boisson de Chazourness, ‘The Global Environment Facility (GEF)’, 199. 133 Goldberg, ‘The Montreal Protocol Multilateral Fund’, 233–236. 134 Joe McCarthy, ‘First-Ever Global Plastic Pollution Treaty’, Global Citizen (online, 2 March 2022) .

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agreement would be legally binding …”.135 It appears from a first reading of the draft resolution adopted at UNEA-5.2 that the plastics treaty will include both binding and voluntary provisions.136 Furthermore, it is likely the treaty will be enforced through the UN legal system, which is how other legally binding global agreements are enforced.137 This mode of enforcement means that if a term of the treaty is breached by a Member State, the nation will face legal and financial sanctions, though disciplinary action is likely to be used sparingly, and instead, support is likely to be provided to assist the nation to implement the treaty.138 Hence, it is doubtful how ambitious the provisions which are legally binding will be, such as whether nations will be obliged to eliminate plastic pollution and if so, by when, and in what manner.139 Therefore the effective management of global plastic pollution requires a wide and diverse range of legal tools, particularly a perennial issue: enforcement. Locating rules and standards as voluntary guidelines as is often suggested, however, it is unlikely that states would be held to account.140 Any new international framework therefore would need to set binding global reduction targets.141 These targets should be both measurable and time-bound. This would need to be supported by a strategy for how to achieve those goals, translating global targets into either collaboratively agreed to or self-determined national obligations and complementary action plans.142 Broader Targets One possibility would be for the international community to establish a goal of reducing overall plastic waste generation on a per capita basis. Whilst this will not fully repair the damage already done to the environment, it will

135 United Nations Environment Assembly of the United Nations Environment Programme, ‘Draft Proceedings of the UNEA at Its Resumed Fifth Session’ 2. 136 Hagen et al, ‘Negotiations to Launch on a New Global Plastics Treaty’ 1. See End Plastic Pollution: Towards an International Legally Binding Instrument 2. 137 Fletcher, ‘Expert Q&A on the Promise of a Global Agreement to Reduce Pollution’. 138 Ibid. 139 Ibid. 140 Kirk and Popattanachai, ‘Marine plastics’, 222. 141 CIEL, Toward an international legally binding agreement on plastics and plastic pollution (Policy Paper November 2017) (CIEL, Toward an international legally binding agreement). 142 UNEP, Combating Marine Plastic Litter and Microplastics Summary for Policymakers: An Assessment of the Effectiveness of Relevant International, Regional and Subregional Governance Strategies and Approaches (2017) 90.

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help prevent further damage. One study has calculated that if plastic waste production was to reduce to the average of 1.7 kilogrammes per day in the 91 countries that exceeded that level and the plastic waste stream were capped at 11%, then a 26% decrease of plastic pollution could be achieved by 2025.143 Alongside broader targets, a comprehensive international agreement on plastic pollution could include specific, actionable commitments. One such example is the phasing out of primary microplastics in cosmetic products. The European Union has already proposed legislation banning intentionally added microplastics in products such as cosmetics and laundry powder.144 Enforcement While plastic pollution is a transboundary problem, a successful treaty requires that measures be implemented at the domestic level with the cooperation of state and multiple non-state actors.145 To ensure state accountability in implementing the treaty and reduce the “free-rider” effect, some level of consequence is required for non-compliance either through a confrontation or incentive-based approach. Confrontation-based approaches, such as use of sanctions, involve high political and economic costs and are commonly avoided in treaties. Incentive-based approaches that provide incentives for State compliance over punishing non-compliance are favoured in treaties, and may be most appropriate for plastics given the nature of the problem and various actors involved.146 Trade-related restrictions with non-parties, similar to that used for the Montreal Protocol,147 could be used to facilitate compliance with a plastics treaty. Compliance mechanisms could also penalize states for not complying with agreed to targets or other promises although as noted earlier, such mechanisms are unlikely to be introduced given state antipathy to such mechanisms.148

143 Jenna Jambeck et al, ‘Plastic Waste Inputs from Land into the Ocean’ (2015) 347 Science 468,770 (Jambeck et al, ‘Plastic Waste Inputs’). 144 See, eg, European Commission, ‘New rules proposed to curb microplastics’, European Commission (24 April 2019) . 145 Tessnow-von Wysocki and Le Billon, ‘Plastics at sea’, 102. 146 Ibid. 147 Montreal Protocol on Substances that Deplete the Ozone Layer, opened for signature 16 September 1987, 1522 UNTS 3 (entered into force 1 January 1989) art 4. 148 Garcia et al, ‘All Hands On Deck’, 27.

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Monitoring An effective enforcement system would require experts monitoring the progress at regular intervals, and establishing a dispute settlement system.149 Critically, the new treaty must establish a system to monitor progress on targets, evaluating the effectiveness of the strategy and national action plans to ensure compliance with both binding and voluntary commitments.150 This additionally requires the development of common global standards for measurement and data collection.151 While supported by a technical body, this would in practice require states to report on national progress in a transparent manner.152 The UNEA acknowledges the importance in understanding the sources, pathways and hazards of marine plastic pollution, however, existing marine environment monitoring regimes are fragmented and inconsistent. A plastics treaty that includes a monitoring and reporting framework, supported by common definitions, methodologies and processes, would promote consistency in recording data, enable measures to be tracked and ultimately supports a deeper understanding of global plastic pollution.153 For example, it could fill a significant gap and establish a globally agreed method to calculate the level of plastic entering the oceans.154 Non-state actors would also play an important role in monitoring as states often look to international organizations for data to evaluate progress against obligations.155 Ultimately, a monitoring and reporting framework will promote ‘transparency, accountability and verifiability’ in responding to the plastics pollution crisis.156

COLLABORATION Collaboration and sharing of data, resources and best practices will also be important elements of the treaty, ensuring nations, particularly developing 149 Claudia Giacovelli et al, Single-Use Plastics: A Roadmap for Sustainability (United Nations Environment Programme, 1st edn, 2018), 73; Matthew Schroeder, ‘Forgotten at Sea – An International Call to Combat Islands of Plastic Waste in the Pacific Ocean’ (2010) 16(1) Southwestern Journal of International Law 285. 150 UNEP, Combating Marine Plastic Litter and Microplastics Summary for Policymakers: An Assessment of the Effectiveness of Relevant International, Regional and Subregional Governance Strategies and Approaches (2017) 94–95. 151 Ibid, 91. 152 Hugo, ‘The case for a treaty on marine plastic pollution’, 16. 153 EIA Proposed Plastic Convention Report 6. 154 Duncan et al, ‘The Business Case for a UN Treaty’, 22. 155 Tessnow-von Wysocki and Le Billon, ‘Plastics at sea’, 102. 156 Duncan et al, ‘The Business Case for a UN Treaty’, 22.

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nations, are supported with implementation of the treaty.157 The coordination and cooperation should not only occur on a “global” level as highlighted by Steve Fletcher from the University of Portsmouth,158 but also on national and regional scales, owing to the transboundary nature of the issue.159 The plastics treaty should also promote collaboration and cooperation between governments, and non-government stakeholders including companies, industry, the scientific community, and the public, promoting awareness-raising, education, knowledge sharing, as well as private sector initiatives, scientific research, and community campaigns.160

REDUCTION IN VIRGIN PLASTIC A reduction in overall plastic production and consumption is likely required alongside recycling. To reduce plastic production and consumption, jurisdictions may consider banning some plastic items which we can already see occurring. Some types of single use plastic bags are banned in many jurisdictions, including in Victoria, Australia.161 Some jurisdictions have also banned items such as plastic straws.162 These bans have so far had mixed success.163 There has been a reduction in the consumption of plastic shopping bags and an overall decrease in plastic production, which is a positive result. However, banning plastic shopping bags has also resulted in increased purchases of plastic garbage bags.164 Thus, bans are likely a positive initial step but will not on their own solve ongoing global plastic pollution.

THE ISSUE OF LEGACY PLASTICS Whilst it is appropriate that a prospective instrument on plastics should focus on preventative activity, it should additionally respond to plastic already in

157 ‘How to Design an Effective Treaty’. See End Plastic Pollution: Towards an International Legally Binding Instrument, 3. 158 Fletcher, ‘Expert Q&A on the Promise of a Global Agreement to Reduce Pollution’. 159 ‘How to Design an Effective Treaty’. 160 Fletcher, ‘Expert Q&A on the Promise of a Global Agreement to Reduce Pollution’; Hagen et al, ‘Negotiations to Launch on a New Global Plastics Treaty’ 1. 161 Environment Protection Act 1970 (Vic) s 45ZM. 162 See, e.g., Republic of Vanuatu, Republic of Vanuatu Official Gazette, No 10, 2 February 2018, 4. 163 Laura Parker, ‘Plastic bag bans are spreading. But are they truly effective?’, National Geographic (17 April 2019) . 164 Ibid.

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our marine ecosystems. There is currently no provision in international law for cleaning up plastics already in the ocean165 and a comprehensive global governance model should address this issue. Each of the aforementioned elements of a possible treaty seek to prevent further pollution of oceans from land-based activities but do nothing to address existing plastic pollution in oceans. Gonçalves and Faure identify the lack of ownership of current oceanic waste as a further barrier to reducing marine plastic pollution.166 This cannot be resolved by domestic measures, rather it necessitates recognition of states shared responsibility to address legacy plastic, which is best achieved by a treaty section.167 One possibility might be the creation of a fund within the treaty utilizing the common but differentiate responsibilities principle to identify states that have benefited from plastic production, requiring them to contribute in staggered amounts, determined by an expert panel.168 Such a fund could be used to support the costs of collecting, removing and recycling plastics found in the ocean.

ROLE OF CIVIL SOCIETY Any proposed framework would rely on cooperative action from not only governments, but also the private sectors and civil society.169 To assist in the development of action plans, the Convention should foster the collaboration of academics, non-governmental organizations (NGOs) and policy-makers; academics and NGOs will provide scientific assessments on the effects and state of the maritime plastic pollution and assist policy-makers “develop policy-relevant response options” which they can incorporate into their action plan to reduce maritime plastic pollution.170 These action plans will be flexible because parties could implement a mixture of prevention and recovery measures to achieve the Convention’s goal.171 Global standards for measuring performance, data collection and baselines must be developed to determine each party’s progress.172 NGOs and international organizations will assist parties to evaluate and assess their performance Kirk and Popattanachai, ‘Marine plastics’, 233; Kirk (n 14). Luisa Cortat Simonetti Gonçalves and Michael Gerbert Faure, ‘International instruments of address the plastic soup’ (2019) 43(3) William and Mary Environmental Law and Policy Review 871 (Gonçalves and Faure, ‘International instruments’) 935. 167 Ibid. 168 Kirk and Popattanachai, ‘Marine plastics’, 233. 169 Simon Silns and Maro Luisa Schulte, Stopping Global Plastic Pollution: The Case for an International Convention (Heinrich-Böll-Foundation, 2017). 170 Simon et al, No More Plastics in the Ocean, 35. 171 Hugo, ‘The case for a treaty on marine plastic pollution’. 172 Ibid. 165 166

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by providing information about their progress towards the Convention’s goals;173 these reports will identify what extent of the action plan was successfully implemented and what the effects on the plastic production, use, collection, recycling, waste disposal and discharge are.174 Parties will be able to update and strengthen their action plan by addressing their weaknesses after being informed about their party’s progress.175 However, if a party faces difficulty overcoming an issue, other parties will assist by exchanging technical information to resolve the issue.176 Common but Differentiated Responsibility Global cooperation between developed and lesser developed countries in addressing plastic pollution is imperative. The incorporation of the principle of common but differentiated responsibility (CBDR) in any plastics treaty is critical as it acknowledges the complex, historical contributions towards the problem and the respective financial and technical capabilities of states to respond,177 and allows for variations in roles and responsibilities for some states in responding to the problem.178 The principle of CBDR represents an equitable way to navigate solving the problem of global plastic pollution. The principle of CBDR was captured in the Principle 7 of the United Nation Rio Declaration on Environment and Development. It acknowledged that the developed states have historically and at present, been more responsible for the exploitation and/or destruction of the global environment while benefiting from such usage, has more resources, and consequently has a proportionately greater responsibility in resolving environmental problems.179 The principle of CBDR is essential to mobilizing a global response to plastic pollution. Equal obligations cannot be applied to all countries in the same way. Rather consideration must be given to a state’s ability to fulfill its obligations to ensure that effective international laws are developed and applied.180 Tessnow-von Wysocki and Le Billon, ‘Plastics at sea’, 102. Simon et al, No More Plastics in the Ocean, 38. 175 Ibid, 32. 176 Ibid, 33. 177 Nagtzaam, van Hook and Guilfoyle, 29. 178 Ibid, 243. 179 Rasmus Reinvang, ‘Sustainable Development and Neo-Liberal Globalisation in International Politics: Competing Paradigms Defining the Waste Management Problem’ (2013) 3(27) Economic and Environmental Studies 239 (Reinvang, ‘Sustainable Development’) 241. 180 Matylda Halat, ‘The Role of the Principle of Common but Differentiated Responsibility in Regulating Pollution of the Marine Environment from Post-Consumer 173 174

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This will ensure that developing countries are willing to participate in negotiations, playing an active role in mitigation policies perceiving they are not being treated unfairly in having to shoulder an inequitable burden given their lesser responsibility.181 Furthermore, CBDR can be a “organizing principle” for financial aid and transfer of technology to LDCs.182 Embedding the CBDR principle could lead to developed states, “putting its own house in order” through falling production and consumption patterns, leading to an improvement in environmental standards and concomitant reduction in plastic pollution.183 Leading the way in this space is the European Union that, “intends to invest heavily in research and innovation in order to develop less hazardous and more recyclable plastic materials and more efficient recycling processes.”184 While much of the plastic pollution crisis can be traced back to the poor waste management practices of some developing states, a large proportion of this waste is generated by developed states.185 However moving forward, some developing states such as developing African countries, are projected to show the most growth in plastic consumption and waste generation.186 This principle provides a level of comfort that state circumstances can be taken into account when determining the extent of their obligations under a treaty, as many developing states may lack financial and technical capacity to effectively manage waste while balancing other important socio-economic priorities.187 Most recently, the Group of 77 and China emphasized the importance of this principle in UNEA discussions.188 In practice, the principle of common but differentiated responsibility may provide for states to have different obligations, timeframes and targets to meet treaty objectives, taking into account historical actions contributing to the problem, the distribution of impacts and Plastic Wastes from Land-Based Sources’ (Master’s Thesis, The Arctic University of Norway, 2018) (Halat, ‘The Role of the Principle’) 13. 181 Valeria Constantini, Giorgia Sforna and Mariangela Zoli, ‘Interpreting Bargaining Strategies of Developing Countries in Climate Negotiations: A Quantitative Approach’ (2016) 121 Ecological Economics 128, 130. 182 Halat, ‘The Role of the Principle’, 5. 183 Reinvang, ‘Sustainable Development’, 242. 184 Owen McIntyre, ‘Addressing Marine Plastic Pollution as a Wicked Problem of Transnational Environmental Governance’ (2020) 25(6) Environmental Liability: Law, Policy and Practice 282, 290. 185 Tessnow-von Wysocki and Le Billon, ‘Plastics at sea’, 99. 186 Jenna R Jambeck et al, ‘Plastic Waste Inputs from Land into the Ocean’ (2015) Science 770 (Jambeck et al, ‘Plastic Waste Inputs’). 187 Tessnow-von Wysocki and Le Billon, ‘Plastics at sea’, 99. 188 United Nations Environment Assembly of the United Nations Environment Programme, Proceedings of the United Nations Environment Assembly at its fifth session, 5th sess, UN Doc UNEP/EA.5/25 (24 February 2021) 6–7 [30].

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state circumstances including their capacity to respond and reliance on plastics for economic development.

SCIENTIFIC ADVISORY GROUP Scientists have been called “canaries in the coalmine” in that they provide a warning of actual and potential environmental damage. Scientists within international environmental regimes provide the technical knowledge and language as well as encouraging debate and calling on states to act responsibly and comply with existing agreements.189 The influence of scientists as a group arises from their exclusive specialist knowledge about a subject that can help frame and constrain the policy and legal debate. For many regimes (and the proposed plastics treaty), one of the initial key steps to environmentally protecting a regime is the building of a global scientific consensus that agrees on the issue boundaries and narrows any uncertainties allowing negotiation to take place.190 When it comes to understanding global environmental problems, scientists help determine the scale of the problem; the bases for conflict and the potential solutions to be proffered. No proper action can be carried out without understanding that scientists need to be a vital component of any process.191 Scientific assessments are thus a key battleground as to how environmental issues are framed, options identified and priorities established.192 By updating initial assessments and creating indicators to monitor progress, scientists can help properly modify stakeholder’s strategies in response to the successes or failures of policies adopted within environmental regimes.193 The influence of scientific behaviour on shaping how stakeholders behave or

189 John Braithwaite and Peter Drahos, Global Business Regulation (Cambridge University Press, 2000) 502; Lorraine M Elliott, The Global Politics of the Environment (Macmillan, 1998) 120–121. 190 Pamela S Chasek, Earth Negotiations: Analyzing Thirty Years of Environmental Diplomacy (United Nations University Press, 2001) 28. 191 Rolf Lidskog and Goran Sundqvist, ‘The Role of Science in Environmental Regimes: The Case of LRTAP’ (2002) 8(1) European Journal of International Relations 77–101, 78. 192 Henrik Selin and Noelle Eckley, ‘Science, Politics and Persistent Organic Pollutants: The Role of Scientific Assessments in International Environmental Co-operation’ (2003) 3 International Environmental Agreements: Politics, Law and Economics 17–42 (Selin and Eckley, ‘Science, Politics and Persistent Organic Pollutants’) 18. 193 Alan Grainger, ‘The Role of Science in Implementing International Environmental Agreements: The Case of Desertification’ (2009) 20 Land Degradation and Development 410–430, 410.

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decide comes down to three key factors: scientific credibility, political legitimacy and policy salience. Scientific credibility refers to the believability of the assessment provided to a stakeholder. Political legitimacy in this case, refers to the political acceptability or perceived fairness of a scientific assessment to the stakeholder. Policy salience refers to the ability of a prepared report to address the key policy concerns of a stakeholder. If a report has high scientific credibility, political legitimacy and policy salience the more likely it is to be seen as credible and able to shape a stakeholder’s, or regime communities, behaviour and decision-making. The less credible, legitimate or salient the assessment provided, the converse would apply.194 A major problem regarding plastics is that scientists do not currently have a sufficient scientific understanding of what constitutes “safe” in the realm of plastic chemistry, and so little is known about the long-term health implications of exposure to the substances used and fragmented plastics.195 Current research in this area is ad hoc and progressing far too slowly to keep up with the rate at which industry brings new chemicals into the plastics market. Only a small number of chemicals used have been more thoroughly investigated, but often with gaps of years between their study, the conclusion that they are harmful, and their eventual regulation. These include Bisphenols (BPA), phthalates, PFAS, and PBDEs.196 For instance, short-chain chlorinated paraffins were under review for 10 years before being listed in the Stockholm Convention as a substance that should be eliminated.197 As a result, 53% of the substances of potential concern identified in plastic usage are not regulated by any of the current policy frameworks including the Stockholm Convention, Rotterdam Convention, Basel Convention, Montreal Protocol, and various regional regulatory frameworks such as those in the U.S., Japan, EU and Korea.198 This issue and its solution will be of paramount importance when it comes to creating a new global plastics treaty. Considering this, it is imperative a global science-policy body be established to improve Selin and Eckley, ‘Science, Politics and Persistent Organic Pollutants’, 19–20. Christos Symeonides et al, ‘Buy-now-pay-later: Hazards to human and planetary health from plastics production, use and waste’ (2021) 57(11) Journal of Paediatrics and Child Health 1795–1804 . 196 Ibid. 197 International Institute for Sustainable Development, ‘Summary of the Meetings of the Conferences of the Parties to the Basel, Rotterdam and Stockholm Conventions: 26–30 July 2021’ 15(275) Earth Negotiations Bulletin 2 . 198 Helene Wiesinger, Zhanyun Wang and Stefanie Hellweg, ‘Deep Dive into Plastic Monomers, Additives, and Processing Aids’ (2021) 55(13) Environmental Science & Technology 9339–9351 (Wiesinger, Wang and Hellweg, ‘Deep Dive’) 9344–9345 . 194 195

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identification and regulation of substances of concern, working in collaboration with policy-makers internationally.199 As the editors of Nature note, “science needs to be front and centre in the [plastic treaty] negotiations.”200 It is not uncommon for international treaties to establish multidisciplinary and intergovernmental bodies such as this to aid the achievement of the treaty’s aims. A number of international organizations exist specifically to provide independent scientific advice and research on environmental issues and this body could model after successful initiatives such as the Intergovernmental Panel on Climate Change.201 As such, it has been stressed that the INC must collaborate with the scientific community by “urgently set[ting] up a scientists’ group that can give the negotiators expert advice and respond to their questions” and “provide policy relevant scientific and socio-economic information and assessment relevant to plastic pollution”.202 For example, the expert group could provide insight into the types of plastics which are recyclable; which plastics are biodegradable and under what conditions; and what types of plastics are more readily reusable;203 and conduct more research into “how to apply which solution in which context”,204 ensuring holistic solutions in all parts of the plastics lifecycle are identified. The draft resolution specifically provides for research, and the development of sustainable, affordable, innovative and cost-efficient approaches,205 which could be pioneered by the scientific advisory group. The scientific group should consist of advisers with expertise in, for example, environmental science, social and material science as well as engineering.206 For example, contributions from social scientists may reveal the implications of and interrelationships between national and industry action plans and people’s employment and livelihood.207 The scientists in the advisory group should originate from a variety of geographical locations,208 providing a widespread range of sociocultural perspectives.

199 Zhanyun Wang et al, ‘We need a global science-policy body on chemicals and waste’ (2021) Science 371(6531), 774–776 774–776. 200 Editorial, ‘Landmark Treaty on Plastic Pollution Must Put Scientific Evidence Front and Centre’, Editorials, Nature (8 March 2022) (‘Scientific Evidence Front and Centre’). 201 Ibid; see for example UNFCCC art 9. 202 ‘Scientific Evidence Front and Centre’. 203 Ibid. 204 Bryce, ‘World’s Nations Commit to Ending Plastic Waste’. 205 End Plastic Pollution: Towards an International Legally Binding Instrument 3. 206 ‘Scientific Evidence Front and Centre’. 207 Ibid. 208 Ibid.

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A new plastic treaty needs to include an expert panel to review control measures and timeframe of phasing out various plastics (e.g. every four years and before state’s reporting). The review of the reduction target should also cover each stage of the plastic lifecycle, namely, the amount of production, consumption, elimination, and recycling. All COP members should agree to a reporting system, with progress tracked by an expert panel of scientists, including the form and definitions of the report content, standardized data model, environmental baseline, supervision methods and timeline, etc.209 It is also necessary to establish a transparent monitoring system.210 One potential template for the creation of a plastic treaty scientific advisory committee could be the Stockholm Convention which established the Persistent Organic Pollutants Review Committee (POPRC), which comprises 31 scientific experts nominated by parties from each UN regional group.211 This body reviews chemicals which are nominated for potential concern and regulation by the Convention parties, in a three-stage process: first determining whether a substance meets the criteria for a POP, then building a risk profile for the substance, and finally determining how to manage this risk, such as looking for alternative substances and considering the socioeconomic consequences of restricting the substance.212 A body established under the global plastics treaty can operate similarly, but take a more proactive role. This body should work to define, at the international level and within the treaty itself, what makes a chemical “harmful” to human and/or environmental health; and conversely what is the definition of a chemical that is “safe” – perhaps making reference to the above metrics like persistence, bioaccumulation, toxicity, carcinogenicity and endocrine-disruption. It can also address the concern of plastic fragmentation to research the health implications of micro- and nanoplastics which are still scarcely understood, and find ways to ameliorate these. The role of a global science-policy body could also be to monitor and update a transparent worldwide register of chemicals and their corresponding safety status. This would help to bridge the information gap and provide a means 209 Environmental Investigation Agency, ‘Convention on Plastic Pollution: Toward a new global agreement to address plastic pollution’ (Report, EIA, 8 June 2020) 6 . 210 Pew Charitable Trust and SYSTEMIQ, ‘Breaking The Plastic Wave Report’, 87. 211 Christofer Ahlgren, ‘Future Challenges to the Stockholm Convention on Persistent Organic Pollutants’ (2014) 14 (Environmental Science Bachelor Thesis, Lund University) . 212 Ibid.

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by which to hold industry socially responsible for their use of listed harmful substances (this issue will be explored in greater detail in the second report post UNEP’s 5.2 Meeting when a clearer picture should emerge in this space). Hence, if a global science-policy body established under the treaty can create definitions of “harmful chemical” and/or “safe chemicals” for human health, which applies internationally, this would allow for the treaty to oblige polymer producers to only use chemicals in their products which are proven not to be “harmful”/proven to be “safe”. By providing an overarching definition which every chemical must be tested against, rather than listing individual chemicals that are banned, the treaty will be imposing an obligation which is much harder for industries to avoid. In doing so, this approach would reverse the onus of proof, so that it is industry members who have to prove that their chemicals are safe before they can obtain approval to use them. This is essential in order to hold polymer producers responsible for the products they are bringing onto the market.213

FLEXIBILITY It has been stressed by many, mainly large plastic producing nations such as Japan and the USA together with industry, that the treaty should be “binding but flexible, allowing countries to meet … targets as they choose”,214 by producing their own action plans, which national circumstances.215 This is addressed in the draft resolution where it states “each country is best positioned to understand its own national circumstances”,216 mentions the development, implementation, updating and promotion of national action plans,217 and asks the INC to consider the “flexibility” that some provisions may provide, allowing countries to exercise “discretion” in “implementation”.218 This flexible model currently exists under the Paris climate accord, a likely model for the plastics treaty.219 Under the Paris accord, nations are responsible for setting their own voluntary goals and implementing them, though nations are still committed to working together to achieve a common goal.220 Many have argued that this model, which prioritizes flexibility based on national

Wiesinger, Wang and Hellweg, ‘Deep Dive’, 9347. ‘How to Design an Effective Treaty’. 215 Hagen et al, ‘Negotiations to Launch on a New Global Plastics Treaty’ 1. 216 End Plastic Pollution: Towards an International Legally Binding Instrument 2. 217 Ibid, 3. 218 Ibid, 3. 219 Birnbaum and Kim, ‘Plastics Production is Skyrocketing’. 220 Ibid. 213 214

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circumstance, whilst achieving widespread support amongst nations,221 is “toothless” and ineffective in reaching the requisite goal.222 This is of particular concern for the plastics treaty since the legal status of the proposed national action plans remain unclear from the draft resolution.223

TREATY INFORMING DOMESTIC LAW AND POLICY Whilst there is concern that the plastics treaty will be “toothless” given its likelihood of containing voluntary provisions, relatively weak enforcement mechanisms, and allowing for flexibility based on national circumstances, it is expected that once the treaty comes into effect, it will have the effect of guiding domestic environmental laws and plastic, production, use and recycling policies globally. Hence, even if a particular nation is not a party to the treaty or is lax with its implementation, given the globalized nature of trade and commerce, it is expected that the treaty will impose pressure on industry and companies to conduct their operations in accordance with treaty provisions.224

HOW ANY TREATY IS EXPECTED TO OPERATE WITH EXISTING TREATIES/CHARTERS Andrès del Castillo, senior attorney for CIEL outlined that the INC will, “need to determine how best to merge the plastic agreement with other existing UN environmental treaties, which cover everything from air pollution to hazardous waste transport and biological diversity”.225 Existing treaties, including the Basel Convention and the UN Convention on the Law of the Sea are not designed with a focus on plastics, though there will still be an area of intersection between the new plastics treaty and these existing Conventions, requiring consideration by the INC. Drawing off Other International Environmental Instruments A number of authors (Ford, Kirk, Raubenheimer and McIlgorm) have proposed/examined whether other extent international environmental instruments

Ibid. Ibid. 223 Fletcher, ‘Expert Q&A on the Promise of a Global Agreement to Reduce Pollution’. 224 Hagen et al, ‘Negotiations to Launch on a New Global Plastics Treaty’, 2. 225 Charles Pekow, ‘The World Agrees on a Treaty to End Plastic Pollution’, Mongabay (21 March 2022) . 221 222

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provide a model that can be drawn on to be a basis for a new plastics treaty. This section critically analyses whether the Paris agreement on anthropogenic climate change and the Montreal Protocol on Substances That Deplete the Ozone Layer provide a template for a new global plastics treaty. Paris Agreement A comprehensive agreement on plastic pollution may share similarities with the Paris Agreement on climate change. The Paris Agreement detailed specific global temperature goals but only voluntary pledges were required to reduce emissions.226 The goal is to keep global temperature increases below two degrees Celsius in the long term.227 Under that agreement states have flexibility about how to achieve them.228 This would allow states to develop targets in consideration of their respective capabilities and economic circumstances.229 Nations then report to a governance body on their progress.230 Such national reduction targets which would then be improved upon over time.231 The Agreement recognized that some Intended Nationally Determined Contributions (INDCs) had been communicated but that the INDCs submitted to date would not achieve the necessary global temperature rises below 2 degrees Celsius.232 The decisions required to keep global temperatures below 1.5 degrees Celsius would be pursued at a later date.233 All parties were now required to submit INDCs and LDCs, “were encouraged to include economy-wide absolute emission reductions in their INDCs, and … to move over time to reduction or limitation targets in the light of different national circumstances.”234 The obligations to submit and update INDCs are now legally

226 Raymond Clemencon, ‘The Two Sides of the Paris Climate Agreement: Dismal Failure or Historic Breakthrough?’ (2016) 25(1) The Journal of Environment and Development 3–24. 227 ‘Tackling Climate Action’, United Nations Sustainable Development Goals (Web Page, 2020) . 228 Key aspects of the Paris Agreement, . 229 Environmental Investigation Agency, Convention on Plastic Pollution, Toward a new global agreement to address plastic pollution (June 2020) , 7. 230 Kirk and Popattanachai, ‘Marine plastics’, 231. 231 UNEP Assessment – Combatting marine litter, 125. 232 Decision, , at 2, 4. 233 Agreement, , Art. 2, p. 22. 234 Ibid, Art. 4, p. 22-24.

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binding as are reporting and review mechanisms.235 Article 14 mandates that every five years a “global stocktake” process, must occur whereby the COP evaluate ongoing progress towards achieving the UNFCCC’s objective, and can [ask?] states to take appropriate action to improve their INDCs to ensure the UNFCCC objective is met.236 Daniel Bodansky points out there are eight key distinguishing features of the Paris Agreement. The Agreement is a legally binding, global agreement with near universal acceptance by states, that applies to developed countries and LDCs alike, imposing the same obligation on both groupings. As opposed to the UNFCCC and Kyoto, this for the first time, takes into account states’ changing circumstances and capacities with increased transparency and accountability. It creates a long-term, durable process that is iterative (five year stock-taking process), that raises global expectations of increased state action over time to resolve anthropogenic greenhouse gas (GHG) emissions.237 Like the Paris Agreement, a plastics treaty could ask each party to have a minimum requirement of domestic plastic production.238 States would outline a comprehensive list of regulatory and non-regulatory measures to achieve targets and treaty objectives. For example, measures may include regulating plastic packaging and other single-use plastics.239 Measures may also promote sustainable actions across the plastics lifecycle, consumer education and investment in emerging technologies (e.g. to filter microplastics from the marine environment).240 Allowing such flexibility reflects the fact that states are sovereign within their own domestic jurisdictions and thus can choose their own commitments,241 and also allows states to consider their own abilities and interests with regards to plastic pollution. Even with limited reduction targets, a global

235 Susan Biniaz, An Overview of International Climate Change Law, including the Paris Agreement (pending, on file with author), at 9–10. 236 Agreement, , Art. 14, p. 32. 237 Daniel Bodansky, ‘Notes and Comment: The Paris Climate Change Agreement: A new hope?’ (2016) 110 American Journal of International Law 288, 290–91. As discussed below, the “universal acceptance” was disrupted on 1 June, 2017, when U.S. President Donald Trump announced that the U.S. would withdraw from the PDA. 238 Dave Ford, ‘We Need a Paris Agreement for Plastics’ (2021) Waste360 1, 2. 239 Duncan et al, ‘The Business Case for a UN Treaty’, 7. 240 Tessnow-von Wysocki and Le Billon, ‘Plastics at sea’, 100. 241 See, e.g., Sandra Guzman, ‘Needs and Priorities in the Context of Setting the NCQG: What, How and When?’ (2022) 2, .

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governance approach could allow “a mechanism for exchanging knowledge”242 to be established, to ensure action is based on the “best scientific evidence and socio-economic assessment”.243 There are a number of issues with adopting such a voluntary approach as espoused by the Paris Agreement. This approach may result in low accountability and varying contributions. Plastic pollution is not necessarily analogous to GHGs given they cannot be recycled naturally beyond a number of times.244 Further, the Agreement avoided implementing strong compliance mechanisms undermining the enforceability and the effectiveness of the agreement.245 Further, alternatives to oil-based plastic are desperately needed but have yet to appear in quantity due to their being more expensive compared to oil-based alternatives.246

MONTREAL AS A MODEL The then UN Secretary general, Kofi Annan, declared in 2003 that the Montreal Protocol was, “perhaps the single most successful international agreement to date”,247 in part because of its compliance procedures.248 The Protocol aimed to promote a global decrease of the use and production of substances, such as chlorofluorocarbons (CFCs) that lead to the depletion of the ozone layer, by requiring each individual state party to reach collectively agreed targets.249 The Protocol calls for a freeze on the use of five types of fluorocarbons and three types of halons for three years, as an immediate action so as to allow

242 Environmental Investigation Agency, A legally binding agreement on plastic pollution - FAQs . 243 Ibid. 244 McRae, ‘Introduction to the symposium’, 194. 245 ‘Tackling Climate Action’, United Nations Sustainable Development Goals (Web Page, 2020) . 246 Kirk and Popattanachai, ‘Marine plastics’, 231. 247 Bryan A Green, ‘Lessons from the Montreal Protocol: Guidance for the Next International Climate Change Agreement’ (2009) 39(1) Environmental Law (Green, ‘Lessons from the Montreal Protocol: Guidance for the Next International Climate Change Agreement’) 253, 256. 248 Ian Rae, ‘Saving the ozone layer: why the Montreal Protocol worked’, The Conversation (10 September 2012) (Rae, ‘Saving the ozone layer’) . 249 Patlis, ‘The Multilateral Fund of the Montreal Protocol’, 190.

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more research to be undertaken.250 These targets were established based on the national, 1986 levels of production and consumption of CFCs.251 The final agreement adopted a “command and control” framework to regulation consumption and production of CFCs.252 It further put in place arrangements for the administration, assessment and enforcement of control provisions.253 To ensure compliance with the Protocol, Article 7 requires states to provide an annual report to the Secretariat of the UNEP, which includes statistical data on the production, imports and exports of CFCs. The Protocol also includes a provision to ensure that further research is completed, and allows for other ozone depleting substances (ODS) to be included within the ozone regime if new evidence for the need arose.254 Under the Montreal Protocol, the UN assisted nations that were failing to meet their obligations to prepare an action plan to guide their future compliance.255 Thus, rather than taking a punitive approach, the compliance procedures in this protocol supported nations to achieve their goals. A fund established to assist the treaty was also available to support their short-term projects,256 and the creation of such a fund has been suggested as part of the global governance model proposed for any global plastic instrument. All developing countries were able to meet their targets under this system, demonstrating its success.257 The Montreal Protocol’s target was that all the substances for manufacture and usage listed in the annex would be banned by all state’s eventually.258 Under Article 3, the calculation formulation of “production”, “imports and exports”, “consumption” and “emission” sets a clear base for measurement. In practice, a long-term plan with detailed reduction objectives (cutback of 50% to be achieved within 12 years) seems more realistic for solving this global environmental issue.259 250 Joel Mintz, ‘Keeping Pandora’s Box Shut: A Critical Assessment of the Montreal Protocol on Substances That Deplete the Ozone Layer’ (1989) 20(3) University of Miami Inter-American Law Review 565 (Mintz, ‘Keeping Pandora’s Box Shut’) 569. 251 Patlis, ‘The Multilateral Fund of the Montreal Protocol’, 190. 252 Graham Donnelly Welch, ‘HFC Smuggling: Preventing the Illicit (and Lucrative) Sale of Greenhouse Gases’ (2017) 44 Boston College Environmental Affairs Law Review 525 (Welch, ‘HFC Smuggling ‘) 532–523. 253 Mintz, ‘Keeping Pandora’s Box Shut’, 568. 254 Welch, ‘HFC Smuggling’, 533–534. 255 Rae, ‘Saving the ozone layer’. 256 Ibid. 257 Ibid. 258 Kirk, ‘The Montreal Protocol or Paris Agreement?’, 213. 259 Karen Raubenheimer and Alistair McIlgorm, ‘Is the Montreal Protocol a model that can help solve the global marine plastic debris problem?’ (2017) 81 Marine Policy 322 (Raubenheimer and McIlgorm, ‘Is the Montreal Protocol a model’) 326.

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According to the Montreal Protocol’s technology transfer provision, any discovered or created alternatives and technology should be transferred to parties under fair and most favourable conditions.260 The Protocol encouraged the, “best technologies for improving the containment, recovery, recycling, or destruction of controlled substances or otherwise reducing their emission.”261 It also set out the process of “recovery”, “recycling” and “reclamation” for a controlled substance in a circular system.262 The Montreal Protocol has an effective support mechanism to promote enforcement and international cooperation. It set up three assessment panels: scientific panel, environment panel, and technical panel,263 and their work is to make special reports on the assessment of control measures.264 The Montreal Protocol has the merit of flexibility by designing a periodical assessment on control measures and reporting of data.265 New prohibited substances can be added to the control list, and the process and timeframe for elimination targets can also be updated with further analysis.266 The Secretariat of the Vienna Convention and Montreal Protocol, also known as the Ozone Secretariat, was made responsible for servicing the meetings of the two agreements and ensuring that parties have all the necessary information they need to make decisions. The Secretariat further follows up on decisions and supports the implementation of the treaties, and therefore has an important role in facilitating negotiations between parties.267 What Made the Montreal Protocol Successful? The accomplishments of the Protocol can be measured in a number of ways. For decades, the Montreal Protocol worked quietly to phase out ODS products carrying out comprehensive scientific research and encouraging subsequent

260 Montreal Protocol on Substances that Deplete the Ozone Layer, opened for signature 16 Sept 1987, 1522 UNTS 3 (entered into force 1 January 1989), art 10 (A). 261 Ibid, art 9. 262 Ibid, Decision IV/24: Recovery, reclamation and recycling of controlled substances. 263 Ibid, Section 2.2 ‘Decision by Article’, Article 6 ‘Decisions on establishment and organization of assessment panels’. 264 Ibid, arts 2, 6. 265 Ibid, art 7. 266 Ibid, art 2. 267 Tina Birmpili, ‘Montreal Protocol at 30: The governance structure, the evolution, and the Kigali Amendment,’ (2018) 350 Comptes Rendus Geoscience 7425–7431, 425–426.

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technological developments.268 The actions wrought thru the Protocol have been effective in preventing it is estimated two million cases of skin cancer annually by 2030.269 By the agreed 1996 phaseout date, CFCs had been successfully eradicated.270 The Protocol eliminated more 135 billion tonnes of carbon dioxide equivalent between 1987 and 2010, while phasing out almost 100 ODS.271 By 2010 most ODS had been phased-out, and the Protocol had reached universal ratification.272 The Protocol had shown that global problems could be resolved if all local stakeholders joined forces with a clear framework, that would provide legally binding commitments and a financial mechanism which was directly linked to compliance.273 Importantly, the Montreal Protocol is considered, “the world’s first adaptive global environmental regime.”274 An adaptive regime is one that while pursuing a goal that remains the same, supports and adapts to changes, and incorporates this changed knowledge into its policies.275 The Protocol, “utilised and provided successful – which could be considered as revolutionary – approaches to the principle of common concern, the precautionary principle, state sovereignty and the breakthrough principle of common but differentiated

268 Mark W Roberts, ‘Finishing the job: The Montreal Protocol moves to phase down hydrofluorocarbons’ (2017) 66(3) Review of European, Comparative & International Environmental Law 220–230, 221. 269 Penelope Canan et al, ‘Introduction to the special issue on ozone layer protection and climate change: the extraordinary experience of building the Montreal Protocol, lessons learned, and hopes for future climate change efforts’ (2015) Journal of Environmental Studies and Sciences 113; Environmental Effects Assessment Panel, ‘2018 Quadrennial Assessment on the interactions of stratospheric ozone depletion, UV radiation, and climate change’ (2018) vii. 270 E Melanie DePuis and Brian J Gareau, ‘Neoliberal Knowledge: The Decline of Technocracy and the Weakening of the Montreal Protocol’ (2008) 89(5) Social Science Quarterly 1212–1229, 1219. 271 UNEP, ‘Report of the Combined Eleventh Meeting of the Conference of the Parties to the Vienna Convention for the Protection of the Ozone Layer and the Twenty-Ninth Meeting of the Parties to the Montreal protocol on Substances that Deplete the Ozone Layer’ (2017) 22. 272 Ibid, 24; Graham Epstein, Irene Pérez, Michael Schoon and Chanda L Meek, ‘Governing the Invisible Commons: Ozone Regulation and the Montreal Protocol’ (2014) 8(2) International Journal of the Commons 337–360. 273 UNEP, ‘Report of the Twenty-Fourth Meeting of the Parties to the Montreal Protocol on Substances that Deplete the Ozone Layer’, 26. 274 Edward A Parson, ‘The Montreal Protocol: The First Adaptive Global Environmental Regime?’ in Phillippe G Prestre, John D Reid and E Thomas Morehouse (eds), Protecting the Ozone Layer: Lessons, Models and Prospects (Springer Science and Business Media, 1998) 127, 127. 275 Ibid.

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responsibility.”276 Common concern and adopting a precautionary principle approach played a significant role in bringing the differing parties together while fostering a sense of cooperation which has proved vital in the continuing negotiations. This paved the way for the Protocol being recognized as, “the first true international precautionary approach to a global environmental danger.”277 The Protocol was an incredibly flexible agreement, as well as bridging various differences during the negotiations process. For example, provisions were incorporated into the Montreal Protocol which allowed states to revise and review the requirements as new scientific and technical information became available. The “basket approach” was also a source of flexibility for the Protocol. Ozone depleting potential ratings were given to each ODS, which would allow states to calculate their annual production, by incorporating export and import totals, which would allow them to fill the basket how they wished with other ODS. Although there was a limit, it gave states the flexibility that most desired to be comfortable agreeing to be bound by the Protocol.278 What is different about the Montreal Protocol as regards other international protocols is the ability of state parties to establish adjustments with the agreement of two thirds of states, which includes a majority of developed and developing states. Under the Protocol even states which did not vote for the amendments are subject to them, when six months after the vote, they are formally notified of the amendments.279 Despite the overall positives of the Montreal Protocol it is not an unalloyed success. The Protocol is not binding on states who have not ratified; so, while it has many signatories it has no effect on those which have not incorporated elements of the treaty into domestic law. Similarly, there are a lack of enforcement mechanisms which compel states to act. Furthermore, by allowing developing states to continue developing CFCs, the treaty was significantly weakened, as seen by the proliferation of such substances on the black market.280

276 Green, ‘Lessons from the Montreal Protocol: Guidance for the Next International Climate Change Agreement’, 259. 277 Ibid, 259–260. Although Vienna had acknowledged the potential for a harmful impact that ozone depletion was having on the health of humans and the environment, it did not instigate initiatives to mitigate the issue. Green, ‘Lessons from the Montreal Protocol: Guidance for the Next International Climate Change Agreement’, 260. 278 Ibid, 262. 279 DeSombre, ‘The Experience of the Montreal Protocol’, 54. 280 Ivor Elrifi, ‘Protection of the Ozone Layer: A Comment on the Montreal Protocol’ (1989) 35 McGill LJ 387.

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Application to Plastic The Montreal Protocol is widely regarded as the most suitable model for designing a global plastic treaty. Because its measurable control methods, realistic aim and high-level international participation are similar to the problem of plastic pollution, it has been mooted as a possible template for a global plastic instrument.281 Applying elements of the Montreal Protocol to the plastic industry, we could reduce plastic consumption through improving the elimination of raw plastic usage at the upstream level, strengthening eco-friendly design and the capacity of recycling and reclamation at the midstream level, and implementing bio-safe disposal and secondary recycling at the downstream level.282 The approach taken in the Montreal Protocol may also be suitable to promote immediate pollution reduction action in light of the urgent threat posed by accumulating plastic in the marine environment. This would involve banning the manufacture and use of certain plastics, and potentially chemicals used in production, focusing first on the most harmful plastics with the greatest lifespan. For example, global limits could look to phase out the deliberate manufacturing of microplastics,283 or seek to manage and reduce virgin plastic production to a minimum over time.284 While it is not feasible to replace all plastics, this approach would also provide a strong signal to industry to transition towards more biodegradable plastic products Overtime, as research evolves regarding plastic pollution sources and alternative technologies, additional plastics and chemicals could be incorporated and phased out of the value chain.285 Flexibility in a plastics treaty is important so that adjustments to the scope, requirements and timeframes can be made in line with improved scientific and technical knowledge, and changing societal norms and values.286 The Montreal Protocol as a lifecycle agreement is a good exemplar to design a plastic treaty with a “lifecycle approach” embedded within.287 There are three measurable assessments that could be applied for the plastic lifecycle: manufacture (upstream), consumption (midstream) and waste management (downstream).288

Duncan et al, ‘The Business Case for a UN Treaty’, 25. Raubenheimer and McIlgorm, ‘Is the Montreal Protocol a model’, 327. 283 UNEP 4/6 Resolution 3 [4a]. 284 EIA Proposed Plastic Convention Report, 7. 285 Nagtzaam, van Hook and Guilfoyle, 189. 286 Chambers, ‘Towards an Improved Understanding’, 531. 287 Aarhus et al, ‘Possible elements of a new global agreement’. 288 Ibid. 281 282

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A new plastics treaty could start with a measurement provision that calculates gross production and consumption for certain types of plastic products that need to be controlled in priority, such as single-use plastic packages or bottles. These control measures could be extended into more plastic products with the changeable plastic market. According to setting control measures and timeframe for each prohibited substance, plastic substances can be phased out and eliminated gradually.289 Provision of an implementation support structure would provide a platform for cooperation amongst state parties, encouraging the exchange of technical know-how and best practice via formalised knowledge exchange networks.290 Incorporation of a global fund could additionally provide financial support to states to implement their national action plans, particularly where they lack the national architecture and resources to do so, as well as resolve the lack of a global compensatory mechanism for damage resulting from plastic litter and microplastics.291 Based off the Montreal template, a scientific panel evaluates the status of plastic pollution every four years; the environmental panel assesses the plastic contamination’s effects on land, ocean, and atmosphere; the technology panel innovates and provides technology and scientific information on alternatives to oil-based plastic to parties.292 This assessment mechanism is necessary because lacking strong scientific evidence on plastic’s harm to the environment is one limitation impeding an effective plastic treaty.293 It has been argued that inclusion of other stakeholders, such as cities (versus nation states), might assist in the success of a new treaty, because more local engagement with MPP is likely to create movement towards reduction targets compared to top-down governance alone.294 This is because cities are often more invested in success of pollution reduction schemes, as they feel the direct economic impacts of pollution in their jurisdictional areas (i.e. reduced tourism).295 Cities are already well positioned to take on responsibilities of 289 Montreal Protocol on Substances that Deplete the Ozone Layer, opened for signature 16 Sept 1987, 1522 UNTS 3 (entered into force 1 January 1989), art 2. 290 CIEL, ‘Thought starter’. 291 UNEP, Combating Marine Plastic Litter and Microplastics Summary for Policymakers: An Assessment of the Effectiveness of Relevant International, Regional and Subregional Governance Strategies and Approaches (2017) 92. 292 Aarhus et al, ‘Possible elements of a new global agreement’, 94 293 Kirk and Popattanachai, ‘Marine plastics’, 231. 294 Danielle Spiegel-Feld and Katrina M Wyman, ‘Cities as International Environmental Actor: The Case of Marine Plastics’ (2020) 62(2) Arizona Law Review 487, 505 (Spiegel-Feld and Wyman, ‘Cities as International Environmental Actor’). 295 Dirk Xanthos and Tony R Walker, ‘International Policies to Reduce Plastic Marine Pollution from Single-Use Plastics (Plastic Bag and Microbeads): A Review’

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pollution reduction, as many are already heavily involved in sanitation and protection of waterways already.296 However, there are key differences between regulation of plastics and regulation of ozone pollutants, namely that plastics encompass a far broader set of chemical compositions than ozone pollutants, and hence would require more extensive bans and reduction strategies to achieve the same result.297

CONCLUSION As Steve Fletcher, Professor of Ocean Policy and Economy from the University of Portsmouth, stated, any such treaty will lead to a, “complete transformation in our relationship with plastics,”298 requiring a, “fundamental shift in how plastics are produced, used and disposed of,”299 with the ultimate goal of a shift to a circular economy where plastic becomes a valuable resource, warranting reuse and recycling.300 In realizing the international communities’ ambition to dramatically reduce global plastic pollution, a new international framework would need to set binding global reduction targets.301 These targets should be measurable and time-bound. This would need to be supported by a strategy for how to achieve those goals, translating global targets into self-determined national obligations and complementary action plans.302 Appropriately, approaches would encompass a combination of preventative measures that are appreciative of the potential pollutants produced across the course of plastics’ lifecycle, as well as recovery measures. Critically, the new treaty must establish a system to monitor progress on targets, evaluating the effectiveness of the strategy and national action plans to ensure compliance with both binding and voluntary commitments.303 This additionally requires the development of common

(2017) 118(1-2) Marine Pollution Bulletin 17, 17; Ana K Spalding and Ricardo de Ycaza, ‘Navigating Shifting Regimes of Ocean Governance: From UNCLOS to Sustainable Development Goal 14’ (2020) 11(1) Environment and Society 5, 7. 296 Spiegel-Feld and Wyman, ‘Cities as International Environmental Actor’. 297 Kirk, ‘The Montreal Protocol or Paris Agreement?’, 213. 298 Fletcher, ‘Expert Q&A on the Promise of a Global Agreement to Reduce Pollution’. 299 Ibid. 300 Ibid. 301 CIEL, Toward an international legally binding agreement. 302 UNEP, Combating Marine Plastic Litter and Microplastics Summary for Policymakers: An Assessment of the Effectiveness of Relevant International, Regional and Subregional Governance Strategies and Approaches (2017) 90. 303 Ibid, 94–95.

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global standards for measurement and data collection.304 While supported by a technical body, this would in practice require states to report on national progress in a transparent manner.305 Finally, provision of an implementation support structure would provide a platform for cooperation amongst state parties, encouraging the exchange of technical know-how and best practice via formalized knowledge exchange networks.306 Incorporation of a global fund could additionally provide financial support to states to implement their national action plans, particularly where they lack the national architecture and resources to do so, as well as resolve the lack of a global compensatory mechanism for damage resulting from plastic litter and microplastics.307 Although likely that a new treaty on plastic would, at first instance, overlap with existing instruments, the creation of such an instrument presents an opportunity to resolve the fragmentation of existing legal framework, creating synergies across legal regimes for improved coordination of international activity for the realization of the goal of reduced plastic pollution. The success of any proposed treaty will be dependent on the availability of alternatives to plastics and suitable international and local political climates and will.308 Further challenges reside in the inherent difficulty of realizing sufficient support amongst states to agree on and implement a treaty.309 Despite the progress of the UNEP in improving global understanding of the impact of plastic litter and possible responses, divided political will amongst the international community has the potential to further delay action on an issue which is rapidly approaching irreversible levels according to some accounts.310 Therefore, it is critical to continue to leverage and build upon the existing legal infrastructure while progressing the treaty agenda. Even if all of the aforementioned elements were incorporated into a new multi-layered governance and regulatory structure, a new treaty would not of itself resolve the numerous challenges the plastic crisis presents. Nevertheless, a dedicated international legally binding framework is a necessary start in addressing ongoing global plastic pollution.

Ibid, 91. Hugo, ‘The case for a treaty on marine plastic pollution’. 306 CIEL, ‘Thought starter’. 307 UNEP, Combating Marine Plastic Litter and Microplastics Summary for Policymakers: An Assessment of the Effectiveness of Relevant International, Regional and Subregional Governance Strategies and Approaches (2017) 92. 308 O R Young, ‘The Effectiveness of International Environmental Regimes: Existing Knowledge, Cutting-edge Themes, and Research Strategies (2011) 108 Proceedings of the National Academy of Sciences 19853. 309 Gonçalves and Faure, ‘International instruments’, 945. 310 Ibid. 304 305

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There are potential benefits for the plastics industry in signing up to a treaty as it would provide clarity to the value chain regarding the direction for plastics, therefore supporting improved operational decisions and the ability for businesses to maintain their social licence to operate.311 However, in the absence of an equivalent, cost-effective and environmentally friendly product to transition to away from plastics, the interests of these plastic producing states need to be carefully managed. Ultimately, treaty measures must be perceived as fair, economically and technically feasible, and aligned to the issue, to encourage cooperation and agreement from states with strong economic interests in plastics.312 Despite the aforementioned tangible impacts, Dr Alex Bond, Senior Curator of Birds at the Natural History Museum, London, stressed that the introduction of the plastics treaty “will not immediately solve our plastic problem”,313 just as has been the case with other climate treaties which have not solved the problems they seek to address “overnight”.314 For instance, with the Kyoto Protocol, it took 20 years for binding targets to be introduced, with the Protocol initially consisting of a set of non-binding targets.315 Dr Bond imagines a similar situation with plastics and said he would “like to see this treaty as the next building block in how we manage waste globally”.316

Duncan et al, ‘The Business Case for a UN Treaty’, 1. Tessnow-von Wysocki and Le Billon, ‘Plastics at sea’, 102. 313 James Aushworth, ‘Treaty to End Plastic Pollution Moves a Step Closer’, Natural History Museum, News (8 March 2022) . 314 Ibid. 315 Ibid. 316 Ibid. 311 312

Conclusion: the current international response to the regulation of plastic As this book has sought to illustrate, there is growing acceptance that plastic pollution poses significant threats to the wellbeing of natural ecosystems as well as to human health.1 However, regulation to address the problem is still at a nascent phase. As regulatory efforts have proliferated, a number of common challenges have arisen. Perhaps most prominently, regulatory efforts appear to have suffered due to considerable collective action challenges common to environmental law regulation more broadly.2 The challenge is particularly prominent in the field of plastics regulation, where well-organized industry actors and industry lobby groups have concentrated wealth and authority as well as the motivation to resist the passage of laws that would support effective regulation in the broader public interest.3 Our discussion in Chapter 2, of the U.S. system, where industry lobby groups have successfully used legal and political mechanisms, such as the preemption laws that are a feature of the U.S. federal system, as well as their superior resources to engage in information and education campaigns in opposition to the effective adoption of plastic regulations, provides just one example of the challenges faced in this field. Regulatory capture and manipulation of fragmented legal and regulatory frameworks are common around much of the world and seem to cross political, legal, and cultural divides.4 There are, however, a number of positive regulatory developments around the world in the field of plastics, with most major actors, including many in

1 Imogen Napper and Richard C Thompson, ‘Plastic Debris in the Marine Environment: History and Future Challenges’ (2020) 4(6) Global Challenges 1900081 . 2 A discussion of collective action problems is included in Daniel A Farber, ‘Politics and Procedure in Environmental Law’ (1992) 8(1) Journal of Law, Economics, & Organization 59 (Farber, ‘Politics and Procedure’) 59–60. See also Dan M Kahan, ‘The Logic of Reciprocity: Trust, Collective Action, and Law’ (2003) 102(1) Michigan Law Review 71, 71. 3 See e.g., Farber, ‘Politics and Procedure’, 59–60. 4 See George T Stigler, ‘The Theory of Economic Regulation’ (1971) 1 The Bell Journal of Economics and Management Science 2, 3–21 (discussing capture in the context of public choice theory).

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industry, acknowledging the need to enhance regulation. Successful mobilization at the grass-roots level has been key to this new movement.5 It is important that we, therefore, take this opportunity to consider how to most effectively devise a regulatory framework that addresses the core of the plastic pollution problem. In furtherance of this goal, this book has had two broad aims. First, the book has presented, in the preceding chapters, detailed description and analysis of plastics regulation in a number of leading jurisdictions, as well as the major challenges faced in those jurisdictions. The aim has been to offer insight into the similar, as well as, at times, vastly different, regulatory experiences across jurisdictions and internationally. The second aim of this book, and the purpose of this concluding chapter, is to explore key legal, regulatory and policy options for plastics regulation in support of the achievement of a relatively recent goal: the shift from production and consumption through a linear economic approach, towards the development of a circular economy. In recognition of the complexity of the plastic pollution problem, and the multi-stakeholder approach that would most likely promote the shift to a circular economy, the regulatory discussion in this chapter places an emphasis on bringing together multiple actors within the regulatory space and relying on a mix of different regulatory tools to achieve an optimal regulatory outcome. In doing so, the chapter highlights the increasingly important role of private actors in the norm-making process that is evident in many aspects of society, including plastics.6 This places a premium on the promotion of genuine dialogue and cooperation among the various stakeholders with an interest in addressing the plastic pollution problem.7 5 Farber, ‘Politics and Procedure’, 59–60 (for a critique of interest group theory in environmental law). See also, Donald T Hornstein, ‘Complexity Theory, Adaptation, and Administrative Law’ (2005) 54 Duke Law Journal 913, 931–932 (discussing complexity theory and “republican moments” where extraordinary periods lead to intense public advocacy for change to law in public interest). 6 See, Annelise Riles, Collateral Knowledge: Legal Reasoning in the Global Financial Markets (University of Chicago Press, 2011), 7–9 (arguing that the distinction between private and public regimes is not helpful as public regimes are often put in place to support private preferences). See also, Layna Mosley, ‘Private Governance for the Public Good? Exploring Private Sector Participation in Global Financial Regulation’ Paper Prepared for a Festschrift in Honour of Robert O Keohane (Princeton University, February 2005), 15 (discussing the different types of non-state actor involvement in regulation); Joel Bakan, ‘The Invisible Hand of Law: Private Regulation and the Rule of Law’ (2015) 48(2) Cornell International Law Journal 282 (noting that non-state actors, particularly multinational corporations, are not regulated by the public international law that regulates states and private law therefore often steps in to fill this gap). 7 Ayres and Braithwaite note that effective regulation requires that regulators listen to the interests of several stakeholders and implement a flexible response between

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A NEW REGULATORY GOAL: MOVING FROM A LINEAR TO A CIRCULAR ECONOMY SYSTEM The plastic pollution problem has arisen in the context of the current linear economic system. This system, based on neoclassical economic models, assumes that there are no ecological limits, and, as a result, these matters are not taken into account when considering economic output. Ignoring the role of ecological constraints in limiting the availability of natural resources and eco-services for economic development often results in environmental degradation.8 To be effective, any solution to the plastic pollution problem will need to take into account planetary limits. The adoption, and implementation of mechanisms in support, of a circular economy approach to regulation is well-suited to help achieve this goal.9 Building on the initial definition outlined in the Introduction, the circular economy, also known as a “closed loop” economy, can be further described in the following way: A circular economy describes an economic system that is based on business models which replace the ‘end-of-life’ concept with reducing, alternatively reusing, recycling and recovering materials in production/distribution and consumption processes, thus operating at the micro level (products, companies, consumers), meso level (eco-industrial parks) and macro level (city, region, nation and beyond), with the aim to accomplish sustainable development, which implies creating environmental quality, economic prosperity and social equity, to the benefit of current

regulatory strategies that range from less coercive to coercive responses: Ian Ayres and John Braithwaite, Responsive Regulation: Transcending the Deregulation Debate (Oxford University Press, 1992) (Ayres and Braithwaite, Responsive Regulation). 8 Ramprasad Sengupta, Ecological Limits and Economic Development (Oxford University Press, 2013). 9 See, for example Walter R Stahel, ‘Circular Economy’ (2016) 531 Nature 435; Eléonore Maitre-Ekern, Carl Dalhammar and Hans Christian Bugge (eds), Preventing Environmental Damage from Products: An Analysis of the Policy and Regulatory Framework in Europe (Cambridge University Press, 2018) (Maitre-Ekern, Dalhammar and Bugge, Preventing Environmental Damage); Ellen MacArthur Foundation, Towards the Circular Economy: Economic and Business Rational for Accelerated Transition (2013) 1 (Ellen MacArthur Foundation, Towards the Circular Economy); Teresa Domenech and Bettina Bahn-Walkowiak, ‘Transition towards a Resource Efficient Circular Economy in Europe: Policy Lessons from the EU and the Member States’ (2017) 155 Ecological Economics 7; Martin Geissdoerfer et al, ‘The Circular Economy: A New Sustainability Paradigm?’ (2017) 143 Journal of Cleaner Production 757, 759.

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and future generations. It is enabled by novel business models and responsible consumers.10

As mentioned in the introduction, the “decoupling of economic growth from primary resource consumption” is the essential idea at the heart of a circular economy approach.11 The main difference between the linear and the circular economy is that the circular economy is restorative and regenerative by intent and design.12 It seeks to design out waste and increase material productivity,13 which is particularly important in the context of plastics. Therefore, ideally, final disposal (e.g. landfilling) should not have a place in the system based on the circular economy, as it brings nothing back to the economy.14 Since half of the plastics produced are disposable (and most of the other half gets discarded at the end of its use anyway) the best way of mitigating the amount of plastic waste is to target its quantity at the point of origin, that is, to reduce the production and use of virgin plastic polymers in the domestic and global economy.15 Figure C.1 provides a simplified view of a circular economy in operation. As illustrated, the components of a diagram show: lifecycle of plastics in a linear economy (cradle-to-grave), production of virgin plastic from oil to landfill or recovery (feedstock or waste-to-energy), and circular economy (cradle-to-cradle), where existing plastics are recycled into new plastic products (cf. development of new virgin plastics). In recent years there has been an increased call for the adoption of the concept to be incorporated into plastic production. For example, the Ellen MacArthur Foundation has collaborated with UNEP and created a Global Commitment in relation to the circular economy. The Global Commitment has united more than 500 organizations supporting the “common vision” of a circular

10 J Kirchherr, D Reike and M Hekkert, ‘Conceptualizing the circular economy: An analysis of 114 definitions’ (2017) 127 Resources, Conservation and Recycling 221–232. 11 Nicky Gregson et al, ‘Interrogating the Circular Economy: the Moral Economy of Resource Recovery in the EU’ (2015) 44(2) Economy and Society 218, 219. 12 Ellen MacArthur Foundation, Towards the Circular Economy, 1. 13 Simon Pollard et al, ‘The Circular Economy – a Reappraisal of the “Stuff” We Love’ (2016) 101 Geography 17, 21. 14 Maitre-Ekern, Dalhammar and Bugge, Preventing Environmental Damage, 33. 15 Ultimately, this has also been argued by Karen Raubenheimer and Alistair Mcilgorm who propose reducing the production of virgin material within the plastics industry and by regulating both the polymers and chemical additives as controlled substances at a global level using the Montreal Protocol as a blueprint. See Karen Raubenheimer and Alistair Mcilgorm, ‘Is the Montreal Protocol a Model that Can Help Solve the Global Marine Plastic Debris Problem?’ 81(2017) Marine Policy 322.

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Source:  Joana C. Prata et al, ‘Solutions and Integrated Strategies for the Control and Mitigation of Plastic and Microplastic Pollution’ (2019) 16(13) International Journal of Environmental Research and Public Health 2411 .

Figure C.1

Diagrammatic representations of a linear and circular economy

economy for plastics.16 Driven by the goal of tackling plastic pollution at its source, companies representing 20% of all plastic packaging produced globally have committed to ambitious 2025 targets to help realize that common vision.17 Whilst the Global Commitment 2020 and 2021 Progress Reports note that realizing the vision of a circular economy for plastics will require unprecedented levels of collaboration at “global … national and regional levels”,18 this demonstrates – at least for non-government entities – substantial global commitment to the establishment of a sustainable economy for plastic regulation. The Global Commitment 2020 Progress Report summarizes the progress made towards fostering an international circular economy for plastics.19 Their key progress metrics (see Figures C.2 and C.3) demonstrate the current success with the various focus points, namely: 1. Elimination of problematic or unnecessary plastic packaging; 16 Ellen MacArthur Foundation, ‘Global Commitment 2020 Progress Report published’, News (2022) . 17 Ellen MacArthur Foundation, ‘The Global Commitment 2021 Progress Report’, Global Commitment (2022) . 18 Ibid, 6. 19 Ibid, 6.

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2. 3. 4. 5.

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Moving from single-use towards reuse models, where relevant; 100% of plastic packaging reusable, recyclable, or compostable; Recycled content; and Plastic packaging footprint and transparency.20

The Ellen MacArthur Foundation have estimated that, by 2040, an international circular economy for plastics has the potential to: • • • •

Reduce the annual volume of plastics entering the oceans by 80%; Reduce greenhouse gas emissions by 25%; Generate savings of US$200 billion per year; and Create 700,000 net additional jobs.21

According to the Foundation, the system should be designed with three principles in mind: • Eliminating all problematic and unnecessary plastic items we do not need; • Innovating to ensure that the plastics we do need are reusable, recyclable or compostable; and • Circulating all plastics items we use to keep them in the economy and out of the environment.22 There remain, however, many challenges associated with a switch from the linear to circular economy model. The biggest of these challenges include changing the approach of private actors regarding how business operates and consumption practices. These challenges require that policy-makers treat the circular economy as a foundational principle when devising regulatory reform.

A MULTIFACETED APPROACH TO REGULATION There have been a number of attempts at the national, and sub-national level, to move towards a circular economy for plastic. For instance, our discussion of the different plastic regulation approaches of the various states of Australia, highlights a consistent, if not yet unified and harmonized, goal of directing regulatory efforts towards the implementation of a circular economy. These Ibid, 6. World Economic Forum, ‘We know plastic pollution is bad - but how exactly is it linked to climate change?’, Chemical and Materials Industry (19 January 2022) ; James Woolven, ‘The solution to plastic pollution’, Circular economy: introduction (25 May 2021) . 22 Ibid. 20 21

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attempts would be facilitated through a multifaceted approach to the law, regulation and governance of plastic. Although this it is beyond the scope of this book to comprehensively review the various regulatory approaches that may be adopted to deal with a complex area such as plastic, there are a number of key points that could assist us to move towards a framework that encourages regulation that has as its underpinning ethos, the development of a circular economy. To begin with, we must recognize that states have a long history of imposing environmental laws relating to the natural resources within their jurisdictions.23 Gunningham and Holley point to the 1970s as a pivotal point in which several states started to impose command and control laws that sought to limit certain types of pollution on the threat of legal penalty.24 Concerns regarding the onerous nature of these types of legal obligations and a growing preference for flexibility and cost-effectiveness in ever-more complex domestic and global landscapes, resulted in a shift away from the sole focus on “binding” legal instruments as a form of societal organization, towards more flexible regulatory and governance approaches in the following decades.25 As previously noted, the increasing role that private actors came to play in influencing society contributed towards a broader shift towards “regulation” which recognized that although the state remained central to norm-making, they came to share authority with other actors, including industry and civil society groups. As Gunningham and Holley note: Regulation is a broader category [than law] and includes much more flexible and innovative forms of social control. For example, it may involve persuasion, self-regulation, and coregulation; it may use both commercial interests and nongovernmental organizations (NGOs); and it may invoke surrogates for direct government regulation—mechanisms that are only partially or indirectly related to state law. But it still involves the state as a central player because even mechanisms that are not reliant on legislation for their authority are negotiated directly with the state and operate in the shadow of the state.26

Importantly, this facilitated a shift towards more “flexible, imaginative and innovative forms of social control”27 that appear consistent with the challenges 23 Neil Gunningham and Cameron Holley, ‘Next-Generation Environmental Regulation: Law, Regulation, and Governance’ (2016) 12 Annual Review of Law and Social Sciences 273–93 (Gunningham and Holley, ‘Next-Generation Environmental Regulation’) 275. 24 Ibid, 275. 25 Ibid, 275–281. 26 Ibid, 274. 27 Gunningham and Holley, ‘Next-Generation Environmental Regulation’, 276–277; Neil Gunningham and Darren Sinclair, ‘Smart Regulation’ in Peter Drahos

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associated with the pursuit of a circular economy and recognizes that governments are not the only actors who have an interest in, or the capacity to deal with, social matters such as environmental pollution. A number of regulatory developments have sought to describe this shift towards a multipolar norm-making framework and to provide a framework through which to enhance regulation in a more complex setting. Perhaps most prominently, “responsive” regulation, as presented famously by Ayres and Braithwaite, provides an early attempt to reconcile the interests of the state in norm-making with the growing formal influence of private actors. Their responsive regulatory approach calls on regulators to initially rely on cooperative/compliance enforcement strategies such as persuasion and education to encourage, and to apply more punitive deterrent regulatory responses when regulated entities do not respond as hoped under the less intrusive and prescriptive regulatory enforcement approach.28 In many ways, another popular regulatory approach, “smart” regulation, is an evolution of Ayres’ and Braithwaite’s “responsive” regulation.29 According to its proponents, smart regulation, with its emphasis on flexibility and imaginative solutions to regulatory problems, seeks to rely on a mix of policy instruments and a broad range of actors to achieve superior regulatory outcomes.30 As with responsive regulation, smart regulation acknowledges the importance of informal mechanisms of social control and their potential to be more effective at achieving regulatory aims than formal regulatory mechanisms.31 This is particularly useful in the context of plastic regulation where we have seen many attempts to use formal legal and political processes to overcome grass-roots efforts that would promote effective plastic regulation. Through their discussion of smart regulation, Gunningham and Sinclair provide a useful framework in which to consider effective regulation of plastic. To begin with, the authors identify a number of important regulatory design principles that are well-suited to addressing idiosyncratic threats to the environment. Emphasis is placed in this regard on the importance of using different (ed.) Regulatory Theory (ANU Press, 2017) (Gunningham and Sinclair, ‘Smart Regulation’) 133. 28 See Ayres and Braithwaite, Responsive Regulation, 35. 29 Neil Gunningham and Peter Grabosky, Smart Regulation: Designing Environmental Policy (Oxford University Press, 1998). This work is also summarized in Gunningham and Sinclair ‘Smart Regulation’; and Neil Gunningham and Darren Sinclair, ‘Designing Smart Regulation’ (2004) available at . Where possible, the explanation of smart regulation in this chapter relies predominantly on Gunningham and Sinclair as it provides a more contemporary explanation of the process. 30 Gunningham and Sinclair, ‘Smart Regulation’, 133. 31 Ibid, 134.

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instrument combinations and how these may either complement each other, be counterproductive, or operate in a particular context. For instance, command and control regulation (technology, performance, and process standards) needs to be considered alongside other forms of regulation, such as economic instruments (broad-based instruments such as permits and taxes, as well as supply side-incentives like financial subsidies, and legal liabilities such as fines), self-regulation organized through industry representative bodies, and voluntary regulatory approaches.32 The approaches should be buttressed through effective information strategies and education campaigns.33 Smart regulation looks beyond the particular instruments adopted – considering their prescriptive or coercive nature – and puts forward a preference for regulatory approaches that are non-intrusive. These instruments, it is suggested, are likely more efficient (for instance, preserving regulatory resources) and less likely to encounter objections from those being regulated.34 Importantly, smart regulation also takes the enforcement pyramid of responsive regulation and expands it to include self-regulatory and non-government third-party escalated regulatory responses.35 Finally, smart regulation includes principles that seek to empower those in the best position to act as surrogate regulators and seeks to promote win-win solutions where industry actors achieve both profit and perform in accordance with optimal environmental standards.36 Baldwin and Black, in addition to setting out responsive regulation and smart regulation (as well as their perceived limitations), also emphasize the move by some regulators to adopt a risk-based approach to regulation – using evidence-based analysis to use of resources where a regulated entity is most likely to interfere with the regulator’s goals.37 Highlighting challenges with each of these approaches, Baldwin and Black put forward a regulatory mechanism that is, what they refer to as, “really responsive”: … to be ‘really responsive’, regulators have to respond not merely to firm’s compliance responses but also to their attitudinal settings; to the broader institutional environment of the regulatory regime; to the different logics of regulatory tools and strategies; to the regime’s own performance; and finally to changes in each of these elements.38

Ibid, 139–141. Ibid. 34 Gunningham and Sinclair, ‘Designing Smart Regulation’, 4. 35 Gunningham and Sinclair, ‘Smart Regulation’, 135–139. 36 Ibid, 135. 37 Robert Baldwin and Julia Black, ‘Really Responsive Regulation’ (2008) 71(1) The Modern Law Review 59–94, 66. 38 Ibid. 32 33

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While it is beyond the scope of this book to analyse these regulatory proposals in detail, they offer insight into how we may effectively and efficiently regulate plastic in a manner that is consistent with circular economy approach. Relatedly, these regulatory approaches provide insight into how regulation in the plastics field may be constructed so as to overcome the challenges of industry obstruction and other legal and political obstacles.

KEY PLASTIC REGULATION MECHANISMS Command-and-Control Regulatory Mechanisms Perhaps the most obvious approach adopted to date has been the command-and-control regulatory approach used to either completely ban or limit the use of single use plastic bags and other single use plastic items. As Part II, Chapters 2, 3, 4, 5 which focused on domestic plastic regulation have highlighted, bans on the manufacture, distribution, trade, and use of most single use plastics are increasingly common mechanisms adopted to protect human health and the environment. These developments are not, however, restricted to only the countries explored in this book. A research paper published by the United Nations Environment Programme titled “Legal Limits on Single-Use Plastics and Microplastics: A Global Review of National Laws and Regulations” identified that bans on specific single use items such as plastic bags have been adopted in some form in 127 different countries across the world.39 These bans range from a ban on free retail distribution (83), to bans on manufacturing and importation (61) in addition to production taxes (27) and consumer fees (30). As an example of countries ratifying strict bans on single use plastics, the Marshall Islands as well as Afghanistan and Bhutan have a, “total ban on local manufacture, import and retail distribution of plastic bags.”40 More common than outright bans, however, are technology standards that, in effect, provide for a partial ban given the essential nature of some plastics (especially in developing nations where plastic is necessary for the delivery of fresh water and food).41 These technology standards may include: • thickness requirements; • material composition; • production limits; 39 UNEP, ‘Legal Limits on Single Use Plastics and Microplastics: A Global Review’ (2018) . 40 Ibid, 16. 41 Ibid.

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• size requirements; and/or • retail distribution regulation.42 Given that single use plastics “make up a third of the litter we see in our streets and waterways”, this type of ban has picked up recent traction in an attempt to become the new global norm as to how we approach plastic usage.43 It therefore seems plausible that a future that includes an outright ban on most single use plastics, with the exclusion of essential plastics such as those used in medicine (such as hearing aids, heart valves) or infrastructure that remain necessary is potentially within reach. These command-and-control forms of regulations, do not, and should not, operate on their own when we consider the need to move towards a circular economy and take into account the complex socio-political context in which plastics operate. Economic Instruments Deposit refund schemes offer a complementary economic instrument approach. These schemes aim to encourage sustainable “lifecycle” approaches to plastic by charging and subsequently reimbursing manufacturers and/or producers for appropriate plastic treatment practices. The approach operates as a financial incentive for consumers to recycle plastic products and is most commonly used for plastic beverage bottles.44 The schemes provide for a deposit fee at the point of purchase, which is then refunded to the purchaser where the bottle is returned through a specifically designed system of recycling infrastructure.45 In addition to the schemes highlighted in this book, deposit refund schemes have been used to great effect across much of the world. For instance, Ecuador implemented a refund of US$0.02 for each beverage bottle deposited. This has been extremely successful and has contributed towards an increase in bottle recycling from 30% in 2011 to 80% in 2012.46 Further, the U.S. offers another example of successfully adopting deposit-refund schemes. Although the U.S. does not have a uniform federal legislative framework, several U.S states have introduced so-called “bottle bills”. The “California Redemption Value” Ibid, 10. Victoria Government Website, ‘Single Use Plastics Ban’ (2021) . 44 OECD, ‘Deposit refund schemes’ The Ocean (2022) (OECD, ‘Deposit refund schemes’ (2022)). 45 F Alpizar et al, ‘A framework for selecting and designing policies to reduce marine plastic pollution in developing countries’ (2020) 109 Environmental Science & Policy 29, 33 (Alpizar et al, ‘A framework for selecting’). 46 OECD, ‘Deposit refund schemes’ (2022). 42 43

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scheme has, since its introduction in 1987 contributed towards recycling of an estimated 300 billion aluminium, glass, and plastic beverage containers.47 Similarly, in South Australia, the state’s Container Deposit Scheme applicable to eligible beverage containers, provides recyclers with a 10 cent payment per container deposited.48 Over 600 million beverage containers, more than 40,000 tonnes of plastic, have been returned under the scheme.49 The scheme is considered one of the most effective in the world in terms of community participation, beverage return rates and the high quality of material recovered.50 The success of this scheme appears to be at least partly attributable to the breadth of container eligibility, with eight different container types that can be recycled under the scheme, including water containers, alcoholic cider containers and fruit juice containers.51 Despite their promise as a regulatory mechanism, to date, these schemes are difficult to devise, implement and administer even at the domestic level. For instance, the successful scheme adopted by Norway, an advanced, industrial state, was preceded by 10 years of discussion, development and testing.52 This suggests that any attempt to replicate a deposit refund scheme would require considerable planning, assessment and timely consideration of what steps are necessary to implement the scheme in the particular context.53 Another option would be to impose a domestic or international tax on plastic production companies in the form of an extra tax on production of plastic. This would be payable to the relevant government in which the company is located. Alternatively, if a tax was imposed on consumers, it could be applied to multi-national or large companies, rather than individual customers, where the effectiveness of a deposit-refund scheme can be assessed on a large scale.54 Ibid. Australian Government: Department of Industry, Science, Energy and Resources, ‘Container deposit refund scheme – SA’, Rebates and Assistance (2022) (‘Australian Government, ‘Container deposit refund scheme’ (2022)’). 49 EPA South Australia, ‘Review of SA Container Deposit Refund Scheme’ Container Deposits (Web Page, 29 November 2021) . While this is an impressive achievement, beverage containers account for less than 3% of litter items in the state. 50 Australian Government, ‘Container deposit refund scheme’ (2022). 51 Ibid. 52 Ibid. 53 Ibid. 54 J Bell, J Huber and W K Viscusi, ‘Alternative Policies to Increase Recycling of Plastic Water Bottles in the United States’ (2010) Social Science Research Network; W K Viscusi, J Huber and J Bell, ‘Promoting Recycling: Private Values, Social Norms, and Economic Incentives’ (2011) American Economic Review 101. 47 48

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Extended Producer Responsibility Schemes (EPR Schemes) similarly use economic instruments as a form of regulation. These schemes create a system whereby manufacturers or importers of plastic goods are held financially responsible for the lifetime costs of managing the products and packaging they bring into the market.55 Manufacturers are charged a fee for each type of plastic material they produce. This fee incorporates the cost of collection, sorting and recycling the product down the line. In more progressive (and more effective) EPR Schemes, these fees are “eco-modulated”, with higher fees for materials that are more harmful and non-recyclable, and lesser fees for those that are recycled or more easily recyclable and reusable.56 The World Wildlife Fund (WWF) has produced a useful guide on the basic principles involved in establishing an effective EPR Scheme.57 According to the WWF, EPR Schemes act as a funding model and functional system, which help facilitate the creation of a sustainable, circular plastics economy. Under an EPR scheme, industry is responsible for the cost of plastic production. This effectively internalizes the full cost of end-of-life management of the plastics. Funds from an EPR Scheme should be channelled directly back into plastic waste management, and potentially into research development of alternative materials and product design to improve recyclability and reusability (so-called “eco-design” discussed below) as well as consumer education campaigns (also discussed below). EPR Schemes make it more expensive to produce virgin plastic products, and incentivize a move towards recycled plastics and more sustainable alternative materials.58 As the WWF notes, an effective EPR Scheme requires collaborative participation across various tiers of the plastics value chain and those with influence over it: from government to local councils, polymer producers, product/goods manufacturers (the companies who pay fees), retailers/suppliers, consumers, and finally waste management operators/reclaimers (including the informal market).59 There are a number of variations in design that may affect the operation of the scheme. For example, under some EPR Schemes there can be one

55 WWF, ‘15 Basic Principles for EPR: Establishing an effective extended producer responsibility (EPR) scheme for packaging’ (2020) (WWF, ‘15 Basic Principles for EPR’). 56 D Kaffine and P O’Reilly, ‘What Have We Learned About Extended Producer Responsibility in the Past Decade? A Survey of the Recent EPR Economic Literature’ (2015) 5. 57 WWF, ‘15 Basic Principles for EPR’. 58 Ibid. 59 Ibid.

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Producer Responsibility Organization (PRO),60 while other EPR Schemes use a number of PROs in order to create a competitive market. Another example of different design elements relates to the nature of responsibility imposed on industry actors. Some EPR Schemes are based on individual responsibility, with obligated companies paying fees directly calculated against their individual contribution to waste and the quantity of plastic they are putting into the market. Other schemes, however, are based on collective responsibility, with fees averaged between companies producing waste. Further, some schemes fix fees on materials based on their weight or other characteristics, whereas others eco-modulate their fees based on the degree to which the materials are recyclable or reusable. EPR Schemes have proliferated in recent years.61 A 2013 OECD study found that roughly 400 EPR Schemes were in place globally for various types of products or materials, though only 17% of them relate to packaging specifically.62 By 2018, EPR for packaging (both plastic and non-plastic) had become even more widespread. The EU, in particular, has seen strong activity in the field of EPR for packaging with 26 out of the 27 EU Member States operating EPR Schemes for packaging waste since 2017,63 and a mandatory Directive for all Member States to establish them by the end of 2024.64 However, at its core, EPR only addresses the mechanical waste of plastics. EPR Schemes tend to focus on improving collection, sorting and recycling of waste to bring about a circular plastics economy. In practice, however, many EPR Schemes (such as those lacking eco-modulation of fees) fail to do even that, often improving collection of waste but not necessarily recycling nor encouraging eco-design to make plastic goods more recyclable or reusable.65 60 Such organizations are interfaces between producers, collectors, recyclers, and the relevant state authority: Recykal, ‘PROs-Role of Stakeholders in EPR’ . 61 WWF, ‘15 Basic Principles for EPR’. 62 OECD ‘Extended Producer Responsibility: Updated guidance for efficient waste management’ (2016) . 63 E Watkins et al, ‘EPR in the EU Plastics Strategy and the Circular Economy: A focus on plastic packaging’, Institute for European Environmental Policy (Report, 2017) (Watkins et al, ‘EPR in the EU’) . 64 European Parliament and Council Directive 94/62/EC of 20 December 1994 on packaging and packaging waste art 7(2); see the Summary of the Packaging and Packaging Waste Directive . 65 Ibid.

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Perhaps of greater concern, EPR Schemes often to date entirely neglect chemical waste. As such, this urgent and complex problem goes unaddressed, meaning that all plastics repurposed in the manufacturing process continue to leak in the environment and to affect human health. Emphasis on notions such as the circular economy, recycling and reuse might provide more visible benefits, but they do not tend to address the leakage of microplastics and nanoplastics into the environment and into our bodies, or the leakage of potentially harmful chemical additives.66 These limitations of EPR at a broad level suggest that additional mechanisms may be necessary to deal adequately with chemical waste.67 As well as the usual options of stronger enforcement or the development of information and education campaigns on the problematic nature of chemical waste, EPR could also play a vital role in this respect. For instance, the relevant EPR scheme could include additional eco-modulation of fees on the basis of a material’s toxicity, or other features that make it harmful.68 Further, the EPR scheme could expand the onus for fees in EPR Schemes from plastic goods manufacturers to the polymer producers themselves, who must also pay a fee if they are producing plastics with harmful chemistry/limited recyclability. Better Eco-Design of Plastics A largely voluntary supplement to many of these regulatory efforts is “eco-design” improvement to plastic product design. This refers to the scientific and/or engineering processes that enable plastic to be more biodegradable and in turn, more environmentally benign.69 It is marketed as a voluntary tool to guide environmentally conscious decisions when eco-design is based on a lifecycle (or circular economy) approach. Application of eco-design is well understood, and eco-design policies support the development of lifecycle resource-efficient and low carbon footprint solutions to the global plastic

66 Christos Symeonides et al, ‘Buy-now-pay-later: Hazards to human and planetary health from plastics production, use and waste’ (2021) 57(11) Journal of Paediatrics and Child Health 1795–1804 . 67 WWF, ‘Position Paper: Extended Producer Responsibility (EPR) for Plastic Packaging’ (2019) 4, 6. 68 Watkins et al, ‘EPR in the EU’. 69 Joana C. Prata et al, ‘Solutions and Integrated Strategies for the Control and Mitigation of Plastic and Microplastic Pollution’ (2019) 16(13) International Journal of Environmental Research and Public Health 8–9.

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waste epidemic.70 Eco-design improvements for plastic products can include the following: • plastic packaging of larger sizes, lower weights, and increased reusability and recyclability; • use of lower-energy intensive materials in plastic packaging; and • implementing eco-friendly means of transportations and efficient shipping configurations.71 PlasticsEurope has emphasized that effective eco-design strategies should consider eco-design “with plastics” rather than eco-design “of plastics”. The distinction is important as it highlights the functional unit’s lifecycle and not the plastic material lifecycle.72 Accordingly, effective eco-design approaches should refer to the specific intended function of products. Figure C.2 canvasses the lifecycle of products containing plastics and implementation of eco-design principles.73 Each “phase” in Figure C.2 is taken to represent an opportunity to contribute to the overall environmental improvement of the product over its total lifecycle. This promotes variance in the eco-design approaches that might be implemented.74 PlasticsEurope has highlighted the utility of eco-design “short cuts” applied in the context of recycling, biodegradability, durability and recycled content.75 Each eco-design approach needs to be assessed holistically to evaluate projected effectiveness. This involves consideration of environmental and cost aspects at each stage of the lifecycle.76 It is particularly important to assess the main environmental impacts throughout the lifecycle of products containing plastics, with a view to continuously minimizing negative externalities which contribute towards environmental harm, such as CO2 emissions.77 Eco-design principles are important in facilitating the creation of a circular economy. Unlike typical applications of the polluter pays principle and EPR Schemes, which impose financial burden on the plastics industry exclusively,

70 PlasticsEurope, ‘PlasticEurope’s Views on Eco-design with Plastics within the Circular Economy’ (Industry Report, 16 January 2018) (PlasticsEurope, ‘PlasticEurope’s Views’ (2018)). 71 See generally Patricia Coehlo et al, ‘Sustainability of reusable-Current situation and trends’ (2020) 6 Resources, Conservation & Recycling 100037. 72 PlasticsEurope, ‘PlasticEurope’s Views’ (2018) 2. 73 Ibid. 74 Ibid, 3. 75 Ibid. 76 Ibid. 77 Ibid.

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Source: PlasticsEurope, ‘PlasticEurope’s Views on Eco-design with Plastics within the Circular Economy’ (Industry Report, 16 January 2018) .

Figure C.2

Schematic view: life cycle of products (e.g. packed goods, cars, buildings containing plastics

eco-design offers a long-term mechanism that directly supports a future where, notwithstanding the volume of produced plastic, the environment can be better protected. Similarly, eco-design improvements to plastics at an international scale appear achievable as they are suited to the expansion of successful eco-design improvements used at the domestic level. The OECD notes that eco-designs can be best achieved through the adoption of specific design approaches including: • design of plastics that contain fewer and less harmful additives; • design of plastics that incorporate, or blend, alternative feedstock (bio-based or recycled), or that are biodegradable; • design of plastics that do not incorporate multiple polymers or other materials; and

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• chemical recycling, which was identified as having the potential to address many of the consequences of unsustainable plastics design.78 Supporting these eco-design measures through effective regulation such as robust technical standards has the benefit of dealing with the potential impact of chemical components of plastics on both human health and the environment.79 Innovation is key to effective eco-design for plastics and should address a “multicriterial approach” necessary for eco-design of sustainable plastic products that lead to the most environmentally friendly, cost effective and socially beneficial solution.80 Information Strategies and Education Programmes Underpinning all of the preceding approaches to plastic regulation is the need for the adoption of information strategies and education programmes. This is particularly important in the field of plastics regulation where industry bodies have to date been successful in adopting information and education campaigns to counter the adoption and effective implementation of other forms of regulation. The implementation of effective information strategies and educational campaigns, governmental, but also non-governmental, therefore, provide an important counter to collective action challenges that have to date been a feature of plastics regulation. There has been notable success in this form of regulation, with people around the world increasingly seeking out information on the harm of plastics and the potential solutions to plastic pollution problems. Consumers, particularly in Western nations, it appears, are eager to take responsibility for their own plastic waste. The challenge has been to prevent the proliferation of a

78 OECD, ‘Global Forum on Environment - Plastics in a Circular Economy: Design of Sustainable Plastics from a Chemicals Perspective’ (2018) Resource, productivity, waste . 79 Richard C Thompson et al, ‘Plastics, the environment and human health: current consensus and future trends’ (2009) 364(1526) Philosophical Transactions 2153 . 80 PlasticsEurope, ‘PlasticEurope’s Views’ (2018) 5; John N Hahladakis et al, ‘An overview of chemical additives present in plastics: migration, release, fate and environmental impact during their use, disposal and recycling’ (2018) 344 Journal of Hazardous Materials 179, 183.

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“wishcycling”81 regime, rather than individual contributions to sustainable plastic regulation.82 The effectiveness of information campaigns on plastic pollution awareness, and its utility in enhancing other forms of regulation, is evident from an example from Ireland.83 The Irish tax on single-use plastic carrier bags has been particularly successful at reducing bag consumption partly thanks to the important accompanying information campaign which, explaining policy objectives and tax revenue destinations, paved the way for widespread awareness and buy-in.84 There is various and increasing public awareness on the need for sustainable production and consumption of plastics.85 This has encouraged local authorities to organize collection of recyclables, encouraged some manufacturers to develop products with recycled content, and other businesses to supply this

81 Wishcycling is a system where people put their rubbish in recycling programmes with only the hope that their items will be recycled into a new product despite their being no evidence that it is. Jessica Heiges and Kate O’ Neill, ‘What is Wishcycling? Two Experts Explain’, The Conversation (12 January 2022) . 82 Recycle Nation, ‘What is Wish-Cycling and Why Does It Matter?’ (2022)

(Recycle Nation, ‘What is Wish-Cycling’); Kaitlin Robb Price, ‘The Millennial Wish-Cycler: Best Practices for Reducing Recycling Contamination’, University of Florida, Department of Journalism and Communications (30 September 2020) 2. 83 Ibid. 84 OECD, ‘Taxes’; Recycle Nation, ‘What is Wish-Cycling’; see for example Jeff Lewis and Molly Hayes, ‘Reduce, reuse, recycle, rejected: Why Canada’s recycling industry is in crisis mode’ (15 May 2019) ; Maggie Z X Xiao, ‘A Roadmap for Environmental Sustainability of Plastic Use in Anesthesia and the Perioperative Arena’ (2021) 135(4) Anaesthesiology 729 . 85 Hui Wang et al, ‘Key factors influencing public awareness of household solid waste recycling in urban areas of China: A case study’ (2020) 135(1) Resources, Conservation and Recycling 104813–4 ; Sustainability Exchange, ‘Education and awareness of recycling schemes’ Recycling (2022) ; Australian Government, ‘Investing in Australia’s waste and recycling infrastructure’ Department of Agriculture, Water and the Environment (2022) .

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public demand.86 Marketing studies of consumer preferences indicate that there is a significant, but not an excessive, proportion of people who incorporate environmental values into their purchasing patterns, even at a higher cost per product.87 However, for these customers, whilst confirmation of recycled content within plastic products and their suitability for recycling of the packaging can encourage proactive recycling behaviour, exaggerated general claims in support of recyclability (where the recyclability is potential, rather than actually doable) can reduce consumer confidence.88 It has been noted that participating in recycling schemes is an environmental behaviour that has wide participation among the general population. This is supported by statistics of 57% support in the UK in a 2006 survey, and 80% in an Australian survey.89 Figure C.3 illustrates the relationship between public awareness and plastic regulation,90 which could provide a sound preliminary model to consider in developing any manner of information campaign.

Source: Walter Leal Filho, ‘An assessment of attitudes towards plastics and bioplastics in Europe’, (2021), 755(1), Science of the Total Environment, 3.

Figure C.3

Relationship between public awareness and plastic regulation

86 Jefferson Hopewell, Robert Dvorak and Edward Kosior, ‘Plastics recycling: challenges and opportunities’ (2009) 364(1526) Biological Sciences 2115 (Hopewell et al, ‘Plastics recycling’). 87 Ibid. 88 Ibid. 89 Ibid. 90 Walter Leal Filho, Amanda Lange Salvia, Alessandra Bonoli, Ulla A Saari, Viktoria Voronova, Marija Klõga, Sonali Suraj Kumbhar, Katharina Olszewski, Daniele Müller De Quevedo and Jelena Barbir, ‘An assessment of attitudes towards plastics and bioplastics in Europe’ (2021) 755 Science of the Total Environment 142732 .

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Prima facie, there appears to be a benefit in developing information campaigns on the current environmental harms and future threats posed by existing and continuing plastic pollution. Particularly where recycling is developed pursuant to the below recommendation, education campaigns would assist in informing the public of how to “correctly recycle”, ensuring that plastics’ entry into a recycling infrastructure does not jeopardize the systems’ ability to recycle materials. Whilst this may assist in fostering recycling approaches on the individual level, this first requires that the actual recycling processes effectively deal with the waste, to avoid perpetuating “wishcycling”.91 An example of the opposite situation is China’s “National Sword” policy, where much of the U.S. plastic waste sent to China and Hong Kong (931 million kilogrammes in 2017) under the auspices of a “recycling” policy, is actually burned and buried.92 Therefore, whilst education and awareness would go hand in hand with policies that deal with plastic treatment, its effectiveness is contingent on efficient recycling/ waste treatment systems to be made aware. As such, the effectiveness of an efficient recycling system and information campaigns encouraging consumers to adhere to same are symbiotic. Education campaigns have been reported as particularly successful in relation to domestic campaigns against single-use plastics, evident from many domestic examples.93 The U.S. organization, EARTHDAY.ORG, is committed to “changing human attitudes ... and behaviour towards plastics and reducing plastic pollution”, with an emphasis on the public “[understanding] the impacts of plastic pollution on human and ecosystem health”, and “how (their) everyday actions” can mitigate the same.94 Their formal campaign, “Climate & Environmental Literacy”, not only supports this public awareness goal, but promotes the creation of jobs within a “green consumer marker” as incidental benefits of the public’s literacy in support of an international circular economy for plastics.95

91 Ben Korn, ‘What is Wishcycling, and How Can It Harm the Environment?’, Brightly (online, 31 March 2021) . 92 Cheryl Katz, ‘Piling Up: How China’s Ban on Importing Waste has Stalled Global Recycling’, Yale Environment 360 (7 March 2019) . 93 Stockholm Environment Institute, ‘Reducing Plastic Pollution: Campaigns That Work’, One Planet Live with Care (2022) . 94 EARTHDAY.ORG, ‘End Plastic Pollution’ Campaigns (2022) . 95 EARTHDAY.ORG, ‘Climate and Environmental Literacy’ Campaigns (2022) .

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The campaign “[combines] grassroots support” and “ground efforts” of “students, educators, and nonprofits”, backed by “national level commitments” by government entities, to provide “high-quality education to develop informed and engaged environmental stewards”. Expanding this information campaign infrastructure on an international scale, made palatable by the availability of online resources, with details on: • the detailed and scientifically-qualified risks of continuing plastic pollution; • the flow-on effects of plastic pollution on ecology and public human health; and • the strategies/mechanisms in place to mitigate/prevent these harms; and • details on how to adequately recycle, pursue sustainable everyday living options and “get involved” in public signatory efforts. Therefore, it can be observed that where information campaigns on the effectiveness of recycling are based on actually effective recycling infrastructures, this is a pathway for effective and sustainable treatment of plastic waste. Recycling of Plastic Purely consistent with and integral to a circular economy approach, improved recycling processes is a mechanism that will likely take centre in any system of plastic pollution regulation. However, use of recycled plastics – “once seen as a sign of environmental virtue – is increasingly recognised as posing threats to our health”, as “most” of the “[additivities]” components in these plastics are not regulated and, even where recycled, can be “dangerous”.96 This is particularly in relation to “black plastics”, which is often sourced from “recycled electronics”, containing “phthalates … and heavy metals, such as cadmium, lead, and mercury” – which, “even at very low levels”, can “cause serious reproductive and developmental problems”.97 Accordingly, re-evaluating and reviewing the processes and considerations of recycling – to promote “ethical recycling” – may be necessary to mitigate these risks.98 Particularly considering forecasts for the exponential growth of the global recycling market between 2020–27, this is also a commercially prudent venture on which a global undertaking should capitalise.99 96 Sharon Lerner, ‘WASTE ONLY: How the Plastics Industry is Fighting to Keep Polluting World’, The Intercept (20 July 2019) . 97 Ibid. 98 Ibid. 99 Statista, ‘Global waste recycling services market seize in 2019 and a forecast to 2027’ (2019) ; Awuchi Chinaza Godswill et al, ‘Industrial and Community Waste Management: Global Perspective’ (2020) 1(1) American Journal of Physical Sciences 1–16 . 100 Hopewell et al, ‘Plastics recycling’, 2122.

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further research on this critical but undertheorized and underexamined issue is vital. The regulatory issues highlighted in this book need more research and implementation. It is encouraging to see the topic taken up by more legal and regulatory researchers but much work needs to be carried out if policy-makers are to have the tools to deal with the consequences of our ongoing plastic addiction. The future may indeed still be plastics as Mr McGuire in The Graduate film so presciently observed but how to deal with a product, once considered a “miracle” of modern science, that has shown itself to be highly problematic and in need of greater regulatory oversight at every level? Given the proposed quantities of virgin plastic and its concomitant waste being predicted, we will need robust regulatory frameworks at both the domestic and global level to prevent the damage wreaked by unregulated or poorly regulated plastic pollution. The future generations of humans and the other species we share the planet with deserve no less.

Index 12th Five-Year Plan  92 13th Five-Year Plan  92 2030 Agenda for Sustainable Development  178, 231, 234 “#CleanSeas” campaign  216

Ban Amendment  204 Bangkok 237 Bangladesh 117 Barbuda 251 Basel conference  204 Basel Convention  49, 70, 71, 72, 73, 199, 200, 202, 211, 212, 221, 300 issues  207, 210 potential improvements  211 Basel Convention on Hazardous Waste 177 Beeler, Bjorn  277 Belt and Road Initiative  80, 107 Berijiklian, Gladys  122 BFFPP Act  49, 50, 52, 54 Biden, Joe  243 binding (top-down) requirements  273 bio-based plastics  30 “biodegradable mulches” (BDMs)  87 biodegradable plastics  30, 32, 33 biodegradable products  286 bioplastics 246 Black, Julia  321 Blaschke, Lester  43 blending 5 Blinken, Antony  243 Bodansky, Daniel  302 Bond, Alex  312 Boomerang Alliance  142 bottle bills  323 Braithwaite, John  320 Break Free from Plastic Pollution Act of 2021 (BFFPP Act)  47 broader targets  288, 289 Bunbury, Robert  247, 254

ABS 113 ACC  74, 75, 228 ACT 132 adaptive authoritarianism  91 additives  3, 4, 5, 6, 7, 10, 11, 24, 29, 31, 235 Ad-Hoc Open-Ended Expert Group on Marine Litter and Microplastics (AHOEG)  234, 235, 236, 237 agroecosystem 19 Aittomaki, Anne  275 Albanese, Anthony  139 American Chemistry Council (ACC)  71, 228 American Plastic Association  64 American Progressive Bag Alliance  63 Andersen, Inger  27, 237, 256, 261, 263, 287 Anhui Fengyuan  99 Annan, Kofi  303 Antigua 251 anti-plastic perception  41 anti-preemption bills  69 Argentina 254 Asare, Damptey Bediako  247, 256 atmospheric plastic pollution  20 Australasian Recycling Label (ARL) 136 Australia  105, 111, 114, 115, 117, 119, 123, 124, 129, 142, 248, 249, 318 Australian Packaging Covenant (APCO) 127 Ayer, David  69 Ayres, Ian  320

California  57, 58, 59 California Redemption Value  323 Carlini, Giulia  177 Castillo, Andrès del  281, 300 cellular necrosis  23

Baldwin, Robert  321 337

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Global plastic pollution and its regulation

Centre for International Environmental Law (CIEL)  14 Chakraborty, Paromita  180 Chile  249, 252 Chin, Christopher  257, 262 China  40, 79, 80, 81, 82, 83, 84, 85, 86, 87, 88, 89, 90, 91, 92, 93, 94, 95, 97, 98, 99, 101, 102, 103, 104, 105, 106, 107, 108, 109, 110, 243, 253 plastic waste producer  83 producer of plastics  80 Chinese Sinopec  81 circular economic approach  335 circular economy  79, 92, 104, 109, 112, 132, 133, 139, 189, 233, 234, 242, 247, 248, 257, 270, 276, 277, 315, 318, 334 Circular Economy Promotion Law  92 Circular Economy (Waste Reduction and Recycling) Bill 2021 132 civil society  90, 236, 292 “closed loop” economy  315 coal to olefins production  81 Coca-Cola 78 collaboration 290 commodity plastics  5 common but differentiated responsibility (CBDR) 293 compliance 287 container deposit scheme (CDS)  130 conventional plastics  100 conversion 5 COVID-19 239 COVID-19 pandemic  86, 88, 237, 251 Cox, Gary  201 Dart Container Corp.  59 degradable plastics  4, 29, 32, 100, 109 Dehner, J.  195 deposit refund scheme  323, 324 disposable plastic items  79, 93, 98 disposable plastic packages  93 disposable plastics  13, 14, 33, 99, 100 Dixon, Christina  275 domestic law  300 draft resolutions  240 eco-design improvements  328 eco-design “of plastics”  328

eco-design principles  328 ecological civilization  79 economic growth  316 economic instruments  323 Ecuador 323 educational campaigns  330, 333 education programs  330 Eide, Espen Barth  254, 258, 266, 276 Ellen MacArthur Foundation  316, 318 Enck, Judith  65 end-of-pipe methods  2 energy security  80 enforcement  287, 289, 290 environmental concerns  108 environmental ecosystems  252 Environmental Protection Amendment (Banning Plastic Bags and Other Things) Bill 2018 122 Environment Protection Amendment Act 2019 122 EPR  see extended producer responsibility (EPR) EPR schemes  see Extended Producer Responsibility Schemes (EPR Schemes) EPW Alliance  65 essential plastics  323 European Bioplastics  31 European Chemicals Agency  8 European Union (EU)  189, 232, 233, 247, 248, 249, 251, 252, 268, 272 exempt bags  60 extended producer responsibility (EPR)  51, 54 Extended Producer Responsibility Schemes (EPR Schemes)  325, 326, 327 Exxon  63, 65 fecal microplastics  23 federal plastic regulation  48 federal regulation  55 piecemeal attempts  42 First World Ocean Assessment report 230 Fletcher, Steve  291, 310 flexibility  299, 300, 305, 307, 320 floating plastic macro-debris  16 Florida 62 food storage bags  60

339

Index

Forbes, Graham  261 fossil fuel  14 Fragoso, Luísa  246 funding 280 G20 Action Plan on Marine Litter  217 G20 Hamburg Summit  219 garment bags  60 Garrett, Peter  119 Global Commitment 2020 Progress Report 317 Global Environmental Facility (GEF) 287 global international framework  280 Global Partnership on Marine Litter (GPML) 217 global plastic pollution  224, 268, 288 global plastic pollution treaty  266 global plastic treaty  225, 227, 229, 266, 270, 296, 298, 301 Global Plastic Waste Makers Index 81 Global Programme of Action (GPA)  213 global trade  180 Goldberg, Donald M  287 Graham, Lindsey  71 Greenpeace  39, 98, 261 Gunningham, Neil  319, 320 hazardous waste  199, 202 transportation and disposal of  202 hazardous wastes Annex I  201 high-density polyethylene (HDPE)  113 Hobart City Council  128 Holley, Cameron  319 Honolulu Commitment  214 Honolulu Strategy  214 household plastic waste  207 Iceland 251 INC see Intergovernmental Negotiating Committee (INC) INDCs see Intended Nationally Determined Contributions (INDCs) India 252 India draft resolution  242, 249, 270 individual vs collective responsibility  65 Indonesia 216 inflammation 24 information campaigns  331, 334

information strategies  330 inorganic fillers  6 insidious phenomenon  66 Institute of Scrap Recycling Industries (ISRI) 71 integrated coastal management (ICM) 213 Intended Nationally Determined Contributions (INDCs)  301 Intergovernmental Negotiating Committee (INC)  250, 251, 252, 253, 256, 262, 264, 265, 267, 270, 281, 297, 335 Internal Revenue Code of 1986 (IRC)  45 International Council of Chemical Associations (ICCA)  227, 240, 260 international environmental instruments 300 international framework  288 International Negotiating Committee (INC) 241 international regulatory frameworks  335 Japan 246 Japan draft resolution  241, 242 Japanese resolution  256 Kirk, Elizabeth A  193 Kleine, Konstantin  177 Kolcon, Margaret  45 Kyoto Protocol  312 land-based pollution  195 LBI  see legally binding instrument (LBI) legacy plastic  292 legally binding convention  273 legally binding instrument (LBI)  248, 249, 250, 252, 256, 262 legislative bans  117 life cycle  274, 276, 277, 278, 329 Lindo, Mónica de Greiff  280 liquid natural gas (LNG)  6 local initiatives  61 London Convention  183, 189 Macron, Emmanuel  233 macroplastics  7, 9, 16 Malabo Protocol  212 Mallet, Robert  128

340

Global plastic pollution and its regulation

manufacturing scrap  115 marine litter  237, 238, 246, 285 marine plastic pollution  15, 187, 226, 232, 256, 290 marine pollution  237 marine pollution regulation  182 MARPOL  183, 184, 185, 187, 188, 189 Annex V  186 Medina, Monda  254 Medina, Monica  214 Merkley, Senator Jeff  40, 49 MFW Act  46 Microbead-Free Waters Act of 2015 (MFW Act)  45 microplastic pollution  21, 229 microplastics  7, 8, 9, 10, 11, 18, 19, 20, 21, 22, 23, 24, 26, 30, 31, 46, 47, 179, 233, 235, 237, 238, 246, 249, 272 microplastic wastes  232 Minamata Convention on Mercury  263 minilateralism 218 Mondelez International  135 monitoring 290 Montoya, Modesto  260 Montreal Protocol  259, 281, 283, 289, 301, 303, 305, 306, 307, 308 Montreal template  309 Moore, Charles  117 Morrison government  137, 139 MSW see municipal solid waste (MSW) Muffett, Carroll  261 Mujawamariya, Jeanne d’Arc  259 Multilateral Fund (MLF)  281, 283, 287 multi-layered governance approach  236 multi-modal approach  76 municipal solid waste (MSW)  85, 88 nanoplastics  8, 9, 10, 11, 20, 22, 23, 24, 25, 179 nanoplastic waste  230 nationally determined contributions (NDCs) 264 National Oceanic and Atmospheric Administration (NOAA)  46 National Plastics Plan (NPP)  112, 134, 140, 143 “National Sword Policy” (NSP)  40, 102, 105 National Waste Policy Action

“Plan” 133 National Waste Report 2020  113 New South Wales  115 New York  59, 61 New York State Plastic Bag Task Force (NYSPBTF) 61 Ninaber 187 non-state actors  240, 289 Norwegian Amendment  205 Norwegian plastic amendment  222 Not in My Backyard mentality (NIMBY) 91 Novolex 59 NPP see National Plastics Plan (NPP) NSW Plastic Reduction and Circular Economy Bill 2021 126 NSW Plastics Action Plan  123 Ocean Plastics Charter 217 oil imports  80 Open-ended Committee of Permanent Representatives (OECPR)  225, 246, 247 Open-ended Committee of Permanent Representatives (OECPR-5.2)  249, 253 Open-ended Working Group (OEWG)  225, 251, 252 open-ended working groups  258 “Operation Green Fence” (OGF)  101 Oregon 62 Osaka Blue Ocean Vision  219, 220 oxo-degradable plastics  29, 30, 109, 125 Ozone Secretariat  305 paraxylene  81, 90 Paris Agreement  281, 301, 303 Paris climate accord  266, 299 penalties 279 persistent organic pollutant (POP)  177, 180, 182, 198, 199 personal protective equipment (PPE)  88 PET  21, 22 photodegradable plastics  29 planetary plastic waste  231 plastic  2, 36 Plastic Bag Reduction Act of 2009 (PBR Act) 44 plastic bags  44, 58, 77, 85, 93, 117, 122, 230, 335

341

Index

plastic carryout bags  60 plastic consumption  6, 32 plastic debris  229 plastic economy  33 Plastic Fund  283 plastic initiatives  55 plastic life-cycle  2 plastic limit order  93 plastic litter  233, 235 plastic mulching  19 Plastic Pellet Free Waters Act 55 plastic pollution  1, 2, 4, 7, 8, 9, 12, 13, 14, 15, 16, 17, 18, 20, 21, 25, 26, 27, 28, 32, 33, 35, 36, 41, 42, 43, 46, 47, 49, 50, 51, 53, 55, 62, 66, 69, 74, 75, 76, 79, 85, 86, 88, 89, 90, 91, 92, 94, 99, 107, 108, 109, 111, 116, 139, 224, 233, 235, 236, 242, 243, 248, 252, 253, 256, 257, 275, 277, 294, 297, 308 federal responses  41 health issue  21 plastic pollution problem  315 plastic pollution regulation  334 plastic pollution treaty  271 plastic polymers  235 plastic problem perimeter  124 plastic production  5, 35 plastic production waste disposal  112 plastic recycling capabilities  77 Plastic Reduction and Circular Economy Bill 2021 133 Plastic Reduction Bill 2020 127 plastic regulation  35, 50, 54, 55, 57, 61, 63, 65, 67, 70, 75, 77, 79, 317, 318, 320, 322, 331, 332, 335 plastic regulatory efforts  59 plastics  78, 142, 185, 227, 233, 247, 265, 270, 314 plastics economy  14 Plastics Europe  328 Plastic Shopping Bags (Waste Avoidance) Act 2008 (SA) (SA Plastic Bag Ban Act)  119 plastics life cycle  2 plastics treaty  243, 295, 298, 309 plastics treaty resolution  258 plastic waste  2, 7, 9, 12, 13, 15, 17, 18, 27, 28, 33, 41, 87, 88, 116, 232, 269, 271, 278

definition 271 plastic waste displacement  40 plastic waste exports  35 plastic waste import ban  79, 104 Plastic Waste Reduction and Recycling Act 2021  48 plastic wastes  230 Plibersek, Tanya  139 policy salience  296 polycyclic aromatic hydrocarbons (PAHs) 24 polyethylene 5 polyethylene tetraphthalate  6 polylactic acid (PLA)  30, 125 polymer manufacture  5 polymers  2, 3, 5, 6, 14, 15, 23, 27, 28, 29, 30, 31 polypropylene 6 polystyrene 6 polyvinyl chloride  4, 6, 23 Popattanachai, Naporn  193 POP  see persistent organic pollutant (POP) preemption laws  67, 68, 69, 77 primary feedstock  6 prior informed consent (PIC)  203, 205 private actors  319 private sectors  236 processing aid chemicals  7 Producer Responsibility Organisation (PRO) 326 promotional campaigns  65 public awareness  332 Queensland Plastic Free Places programme 127 Raubenheimer, Karen  180 recovery 129 recycled electronics  334 recycle waste  232 recycling  27, 39, 44, 48, 90, 105, 111, 129, 132, 133, 209, 274, 333, 334 Recycling and Waste Reduction Act 2020 (Cth) (RWR Act)  137 recycling efforts  115, 143 Recycling Investment Fund (RIF)  137 recycling process  27 recycling program  59 regulatory challenges  62

342

Global plastic pollution and its regulation

resin logos  77 Resource Conservation and Recovery Act of 1976 44 Resource Conservation and Recovery Panels 43 Resource Conservation & Recovery Act 72 Resource Recovery Act of 1970 44 Rewarding Efforts to Decrease Unrecycled Contaminants in Ecosystems (REDUCE) Act  48 Rio Declaration  249, 253, 282 Romer, Jennie  69 Rwanda-Peru 244 Rwanda-Peru draft resolution  227, 240 Rwanda-Peru resolution  242, 257 RWR framework  141 SAPEA 25 SAPEA report  25 SA Waste Avoidance Act  126 Schnieder, William  209 scientific advisory committee  241 scientific advisory group  295 scientific community  63 scientific credibility  296 scientific group  297 sea-based pollution  195 Seaholm, Matt  64, 69 Seattle 61 self-regulation 321 Sinclair, Darren  320 Singapore 204 Single-Use and Other Plastic Products (Waste Avoidance) Act 2020 (SA Waste Avoidance Act)  121, 124 single-use plastic bags  55, 56, 58, 119, 233 single-use plastics  76, 98, 117, 143 single-use plastic straws  57 “smart” recycling  335 smart regulation  321 Solid Waste Disposal Act of 1965 (SWDA) 42 solid waste import regulation  101 solid waste (SW) management system 26 stakeholder support  225 state-based approach  116 state initiatives  56

state-level regulation  55 Stockholm Convention  180, 196, 198, 199, 298 Stockholm Convention on Persistent Organic Pollutants 177 strategic goals  274 Sunami, Atsushi  220 SUP Directive  272 Sustainable Development Goals (“SDG”)  178, 231, 233, 234, 278 sustainable waste management  283 SWDA  43, 44 “take-make-dispose” model  15 Tasmania 128 Telesetsky, Anatasia M  65 terrestrial plastic pollution  18 Thailand 248 Tharpes, Yvonne  195 the Ad-hoc Open-ended Expert Group on Marine Litter and Microplastics (AHEG-4) 237 thermoplastics 4 thermosets 4 transboundary issue  192 transboundary jurisdiction  278 transboundary movements  199 transboundary problem  289 trash bags  60 treaty negotiations  190 Trump, Donald  243 UNCLOS  191, 194 Article 194(1)  192 Article 194(3)  192 Article 195  192 Article 207  193, 194 Article 213  194 UNEA 5.1 meeting  239 UNEA 5.2  228, 249, 250, 260, 287 negotiations 229 UNEA 5.2 meeting  225, 243, 254 draft resolutions  240 UNEA Report  231 UNEP’s 5.2 meeting  299 United Nations conference on the law of the sea (UNCLOS)  190 United Nations Environmental Assembly of the United Nations Environment Programme 233

343

Index

UN Resolution on Marine Litter and Microplastics 231 Uruguay  248, 251 U.S.  35, 36, 37, 38, 39, 40, 41, 42, 43, 45, 46, 47, 49, 50, 51, 53, 58, 61, 62, 63, 64, 65, 66, 70, 72, 73, 74, 75, 76, 77, 323 Vermont 57 Victoria  129, 132 Victorian plastic  115 “virgin” plastic polymers  14 virgin plastic, reduction  291 virgin polymers  15

voluntary convention  273 waste importing scheme  84 waste management  13, 189, 227 waste management process  279 waste reduction  129 Waste Reduction and Recycling Act 2011 126 Waste Reduction and Recycling Amendment Act 2017 121 wishcycling  66, 331, 333 World Trade Organization (WTO)  84, 102 World Wildlife Fund (WWF)  325