Update on UN Roadmap for a New Global Plastics Treaty

March 21, 2022

On 2 March 2022, Heads of State, Environment Ministers, and representatives from 175 countries endorsed a resolution at the United Nations Environment Assembly (“UNEA-5”) in Nairobi to negotiate an international legally binding agreement to “end plastic pollution” by the end of 2024 (the “UNEA Resolution”).[1] The UNEA Resolution, End Plastic Pollution: Towards an Internationally Legally Binding Instrument, is the culmination of several years of negotiations and advocacy by governments, international organizations, and the private sector,[2] which pledges to address the full lifecycle of plastic—including its production, design, and disposal.[3] Its adoption has been described as “a cure” for “plastic pollution,”[4] and “the most significant environmental multilateral deal since the Paris Accord [on Climate Change].”[5] As discussed below, the ultimate treaty could have major repercussions on how plastics are regulated and used around the world with material implications for business.

I. Background

Over the last 5-10 years, national, local, and regional governments and international organizations have adopted a growing number of action plans and instruments to address plastic pollution and its interlinkages with biodiversity, climate change, health, and social issues. At the national level, many countries have moved to limit or ban single-use plastics.[6] There has also been a surge of interest in this issue at the multilateral level, including:

UN Environment’s Global Partnership on Marine Litter (2012);[7]
UN Environment Assembly Resolutions on Marine Litter and Microplastics (2014-);[8]
G7 Action Plan to Combat Marine Litter (2015),
G20 Action Plan on Marine Litter (2017),[9]
Ocean Plastics Charter (2018),[10]
Amendments to the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal (“Basel Convention”) (2019),[11]
G20 Osaka Blue Ocean Vision and Implementation Framework (2019),[12]
Association of Southeast Asian Nations (“ASEAN”) Framework of Action on Marine Debris and the Bangkok Declaration on Combating Marine Debris (2019),[13]
ASEAN Regional Action Plan for Combating Marine Debris in the ASEAN Member States (2021–25),[14]
Asia-Pacific Economic Cooperation (“APEC”) Roadmap on Marine Debris (2019),[15]
Caribbean Community (“CARICOM”) St. Johns Declaration to Address Plastic Pollution in Caribbean Sea (2019),[16]
Alliance of Small Island States (“AOSIS”) Leaders Declaration (2021), and
The Ministerial Conference on Marine Litter and Plastic Pollution (2021).[17]

Although ubiquitous, plastics are currently not subject to any single international treaty regime. For example, the 2018 amendments to the Basel Convention meant that, for the first time, transboundary shipments of plastic scrap and waste would be regulated, leading to new export and import requirements for many companies, including U.S. businesses.[18] However, this did not address the majority of plastic products. In addition, the proliferation of local, national, and regional initiatives has given rise to often differing and incompatible rules, imposing greater costs on the regulated industry.

For these reasons, a new international “Plastics Treaty”—focused on plastics as the central issue rather than as an incident to other subject areas—increasingly came to be seen as a key step in regulating global plastic production, use, and disposal, and has been advocated by many businesses looking for harmonized regulatory standards, predictable national targets, and common metrics to make their short- and long-term operational and investment decisions.[19]

II. The Roadmap for a New “Plastics Treaty”

As described below, the UNEA Resolution[20] provides substantive guidance on its key provisions and sets out the procedural roadmap for the new treaty:

A. Substantive Roadmap

The UNEA Resolution also includes a number of provisions that will provide the likely contours of the new Plastics Treaty:

First, contrary to widespread expectations, the UNEA Resolution is not limited to marine plastics or marine debris; it also covers “other environments,” including land-based sources.
Second, it not only seeks to limit or reduce plastic pollution, but aims at “the long-term elimination of plastic pollution, in marine and other environments.”[21]
Third, it adopts a “full lifecycle” of plastic, covering all aspects of its production, use, and disposal.[22]
Fourth, it aims to foster coordination among existing international environmental treaties to “prevent plastic pollution and its related risks to human health and adverse effects on human well-being and the environment.”[23]
Fifth, it seeks to address all aspects of the “sustainable production and consumption of plastics,” including improved waste management, greater resource efficiency and the adoption of “circular economy” approaches.[24]
Sixth, it underlines the importance of sustainable design so that products and materials “can be reused, remanufactured or recycled and therefore retained in the economy for as long as possible along with the resources they are made of, as well as minimizing the generation of waste.”[25] This provision targets, in particular, single-use plastics.
Seventh, it notes specifically the need to regulate “microplastics” (i.e., the miniscule plastic fragments that are created by the breakdown of plastics over time or are intentionally manufactured into some products, such as cosmetics).[26]
Finally, it envisages a role for “all stakeholders, including the private sector,” in achieving the treaty objectives.[27]

B. Procedural Roadmap

The UNEA Resolution is but the first step in the treaty process, which is typical for the negotiation of multilateral environmental treaties. It established an Intergovernmental Negotiating Committee (the “Committee”) that will begin its work during the second half of 2022, with the aim of completing a draft treaty by the end of 2024.[28] The Committee will be working on the draft text, and attempt to resolve big divisions over how ambitious the treaty should be. By the end of the year, the UN Environment Programme (“UNEP”) will also convene a stakeholder forum in conjunction with the first session of the Committee to share knowledge and best practices in different parts of the world. When the Committee has completed its work on the draft text, UNEP will hold a diplomatic conference to formally adopt and open the new treaty for signature.[29]

III. Expectations of Global Divergence and Implications for Economy and Business

The new Plastics Treaty, if ultimately adopted, could have significant implications for the global economy and individual businesses. The final Plastics Treaty will not spell an end for the use of plastics. Indeed, the UNEA Resolution recognized “the important role of plastics for society.”[30] However, the treaty, depending on its provisions, may lead to a sharp increase in compliance costs not only for the regulated industry and plastics manufacturers, but also for companies across the value chain, including consumer-facing companies.[31]

The treaty itself will likely not include detailed prescriptions: the UNEA delegates opted to model the Plastics Treaty on the 2015 Paris Agreement on Climate Change (the “Paris Agreement”), which, as a “bottom-up” treaty, relies on nationally-set commitments to attain the treaty’s objectives. Under the Paris Agreement, countries can set their own binding targets using a range of policies. Here too, we can expect that the final Plastics Treaty will allows individual States to adopt their own rules and regulations, in line with their national circumstances and capabilities, which will be reported and updated in national action plans.[32]

As a consequence, the final Plastics Treaty will likely eschew adopting a single approach and will allow the Contracting States to apply a range of approaches—from voluntary to binding rules.[33] In terms of voluntary rules, many businesses already have in place targets for plastics through voluntary initiatives, such as the Global Commitment[34] and the Plastics Pact Network,[35] ReSource: Plastic,[36] and the World Economic Forum’s Global Plastic Action Partnership,[37] while some financial institutions are developing responsible investment practices that support a circular economy for plastics.[38] But there is also a wide spectrum of binding rules, ranging from caps on plastic production, targets to increase waste collection and recycling, to commitments to phase out single-use plastics entirely or restrict manufacturing or design of plastic packaging, that could be imposed in implementation of the treaty.[39] Finally, the treaty may provide a greater incentive for Governments to shift the cost of recycling or waste disposal to the manufacturers or, in the case of some developing countries, to the importers. This too could impact long-term investment decisions and regulatory compliance for businesses across the value chain.

We can therefore expect to see considerable variation and stringency of rules across jurisdictions in terms of new regulatory measures aimed at curbing plastic pollution,[40] with the final rules being set by individual States. Management of organizations will face the challenge trying to map out the implications for their business and business models—which for some industries and sectors are likely to be significant—while the final rules and their implementation at national level are still being crystallized. In this regard, especially given the short treaty negotiation timetable, it will be important that individual businesses, management, and boards start tracking these unfolding developments at all levels of government and think proactively about these issues and how they will likely impact their operations, investment decisions, and compliance.

__________________________

[1] U.N. Env’t Assemb. Draft Res., U.N. Doc. UNEP/EA.5/L.23/Rev.1, End Plastic Pollution: Towards an International Legally Binding Instrument (Mar. 2, 2022) (“UNEA Resolution”).

[2] The Business Call for a UN Treaty on Plastic Pollution, https://www.plasticpollutiontreaty.org/ (last visited Mar. 20, 2022).

[3] See Nations Sign Up to End Global Scourge of Plastic Pollution, UN News (Mar. 2, 2022), https://news.un.org/en/story/2022/03/1113142 (last visited Mar. 20, 2022); Historic Day in the Campaign to Beat Plastic Pollution: Nations Commit to Develop a Legally Binding Agreement, UN Env’t, Press Release (Mar. 2, 2022), https://www.unep.org/news-and-stories/press-release/historic-day-campaign-beat-plastic-pollution-nations-commit-develop (last visited Mar. 20, 2022).

[4] See id. (quoting Espen Barth Eide, President of UNEA-5 and Norway’s Minister for Climate and the Environment).

[5] See id. (quoting Inger Andersen, Executive Director of UN Environment).

[6] See e.g., State Plastic Bag Legislation, Nat’l Conf. of State Legisl. (Feb. 8, 2021), https://www.ncsl.org/research/environment-and-natural-resources/plastic-bag-legislation.aspx (last visited Mar. 20, 2022); Victoria Masterson, As Canada Bans Bags and More, This Is What’s Happening with Single-Use Plastics Around the World, World Econ. Forum (Oct. 26, 2020), https://www.weforum.org/agenda/2020/10/canada-bans-single-use-plastics/ (last visited Mar. 20, 2022) (reviewing proposed ban in Canada and existing rules in Kenya, Zimbabwe, UK, New York, California, Hawaii, the EU, and China). See also Kimiko de Freytas-Tamura, Public Shaming and Even Prison for Plastic Bag Use in Rwanda, N.Y. Times (Oct. 28, 2017), https://www.nytimes.com/2017/10/28/world/africa/rwanda-plastic-bags-banned.html (last visited Mar. 20, 2022). Similarly, there are a number of such initiatives in the UK, including the UK Plastics Pact, a collaboration between businesses from across the entire plastics value chain, is supported by the UK Government and coordinated by the Waste and Resources Action Programme (“WRAP”). See The UK Plastics Pact, WRAP, https://wrap.org.uk/taking-action/plastic-packaging/the-uk-plastics-pact (last visited Mar. 20, 2022). The UK is also introducing a world-leading plastic packaging tax from 1 April 2022, set at £200 per ton, on plastic packaging which does not meet a minimum threshold of at least 30% recycled content. See The Plastic Packaging Tax (Descriptions of Products) Regulations 2021, 2021 No. 1417.

[7] Global Partnership on Marine Litter, UN Env’t, https://www.unep.org/explore-topics/oceans-seas/what-we-do/addressing-land-based-pollution/global-partnership-marine (last visited Mar. 20, 2022).

[8] See U.N. Env’t Assemb. Res. 1/6, U.N. Doc. UNEP/EA.1/Res.6, Marine Plastic Debris and Microplastics (2014); Res. 2/11, U.N. Doc. UNEP/EA.2/Res.11, Marine Plastic Litter and Microplastics (Aug. 4, 2016); Res. 3/7, U.N. Doc. UNEP/EA.3/Res.7, Marine Litter and Microplastics (Dec. 5, 2017); Res. 4/6, U.N. Doc. UNEP/EA.4/Res.6, Marine Plastic Litter and Microplastics (Mar. 28, 2019); Res. 4/7, U.N. Doc. UNEP/EA.4/Res.7, Environmentally Sound Management of Waste (Mar. 28, 2019); Res. 4/9, U.N. Doc. UNEP/EA.4/Res.9, Addressing Single-use Plastic Products Pollution (Mar. 28, 2019).

[9] G20 Action Plan on Marine Litter, 2017 G20 Hamburg Summit (July 8, 2017).

[10] Ocean Plastics Charter, launched at the G7 Charlevoix Summit (2018).

[11] New International Requirements for the Export and Import of Plastic Recyclables and Waste, U.S. Env’t Protection Agency, https://www.epa.gov/hwgenerators/new-international-requirements-export-and-import-plastic-recyclables-and-waste (last visited Mar. 20, 2022). See also Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal, opened for signature Mar. 22, 1989, 1673 U.N.T.S. 126 (entered into force May 5, 1992) [hereinafter Basel Convention]; The Secretariat of the Basil Convention, Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal: Text and Annexes Revised in 2019 (2020).

[12] Towards Osaka Blue Ocean Vision – G20 Implementation Framework for Actions on Marine Plastic Litter, G20 Implementation Framework for Actions on Marine Plastic Litter, https://g20mpl.org/ (last visited Mar. 20, 2022).

[13] ASEAN Framework of Action on Marine Debris, ASEAN, https://environment.asean.org/wp-content/uploads/2019/06/ASEAN-Framework-of-Action-on-Marine-Debris-FINAL.pdf (last visited Mar. 20, 2022).

[14] ASEAN Regional Action Plan for Combating Marine Debris in the ASEAN Member States (2021-2025), ASEAN, https://asean.org/book/asean-regional-action-plan-for-combating-marine-debris-in-the-asean-member-states-2021-2025-2/ (last visited Mar. 20, 2022).

[15] APEC Roadmap on Marine Debris, APEC, https://www.apec.org/meeting-papers/annual-ministerial-meetings/2019/2019_amm/annex-b (last visited Mar. 20, 2022).

[16] Fortieth Regular Meeting of the Conference of Heads of Government of the Caribbean Community (July 2019), CARICOM, https://caricom.org/wp-content/uploads/DECISIONS-40-HGC-JUL-2019.pdf (last visited Mar. 20, 2022).

[17] Ministerial Conference on Marine Litter and Plastic Pollution: Informal Consultations Addressing the Mandates of UNEA 3/7 and 4/6 towards the 5th UN Environmental Assembly (UNEA-5.2) jointly organized Ecuador, Germany, Ghana, and Vietnam, https://ministerialconferenceonmarinelitter.com/ (last visited Mar. 20, 2022).

[18] The new Basel Convention requirements for transboundary shipments of plastic scrap and waste took effect on January 1, 2021. See U.S. EPA, supra note 11.

[19] See Business Call, supra note 2.

[20] UNEA Resolution, pmbl. (noting “with concern” that “the high and rapidly increasing levels of plastic pollution represent a serious environmental problem at a global scale, negatively impacting the environmental, social and economic dimensions of sustainable development.”).

[21] UNEA Resolution, pmbl.

[22] Id. ¶ 3.

[23] Id. pmbl. This includes, inter alia, 1973 International Convention for the Prevention of Pollution from Ships and its 1978 Protocol, the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal, the Stockholm Convention on Persistent Organic Pollutants, the Rotterdam Convention on the Prior Informed Consent Procedure for certain Hazardous Chemicals and Pesticides in International Trade, the United Nations Convention on the Law of the Sea, the 1972 Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matters and its 1996 Protocol, the Strategic Approach to International Chemicals Management, the United Nations Framework Convention on Climate Change, the Convention on Biological Diversity.

[24] Id. ¶ 3(b).

[25] Id. pmbl.

[26] Id. pmbl.

[27] Id. ¶ 3(l).

[28] UNEA Resolution, ¶ 1.

[29] See UN Env’t, supra note 3.

[30] Id. pmbl.

[31] John Geddie & Joe Brock, “‘Biggest Green Deal since Paris’: UN Agrees Plastic Treaty Roadmap,” Reuters (Mar. 2, 2022), https://www.reuters.com/business/environment/biggest-green-deal-since-paris-un-agrees-plastic-treaty-roadmap-2022-03-02/ (last visited Mar. 20, 2022).

[32] UNEA Resolution, ¶ 3.

[33] Id. pmbl. (“underlining that there is no single approach”). See also id. ¶¶ 3, 4, 15.

[34] The Global Commitment 2021 Progress Report, Ellen MacArthur Found., https://ellenmacarthurfoundation.org/global-commitment/overview (last visited Mar. 20, 2022).

[35] The Plastics Pact Network, Ellen MacArthur Found., https://ellenmacarthurfoundation.org/the-plastics-pact-network (last visited Mar. 20, 2022).

[36] ReSource Plastic, https://resource-plastic.com/ (last visited Mar. 20, 2022).

[37] Global Plastic Action P’ship, https://globalplasticaction.org/ (last visited Mar. 20, 2022).

[38] See Business Call, supra note 2.

[39] Indeed, one of the key proponents and drafters of the UNEA Resolution, Rwanda, more than a decade ago adopted strict bans on the import, production, use or sale of plastic bags and packaging. See The World Is Awash in Plastic. Nations Plan a Treaty to Fix That, N.Y. Times (Mar. 2, 2022), https://www.nytimes.com/2022/03/02/climate/global-plastics-recycling-treaty.html. See also supra note 6.

[40] UNEA Resolution, pmbl., ¶¶ 3 & 4.

Gibson Dunn’s lawyers are available to assist in addressing any questions you may have regarding these developments. Please contact the Gibson Dunn lawyer with whom you usually work, any member of the firm’s Environmental, Social and Governance (ESG), Transnational Litigation, or International Arbitration practice groups, or the following authors:

Perlette M. Jura – Los Angeles (+1 213-229-7121, [email protected])
Susy Bullock – London (+44 (0) 20 7071 4283, [email protected])
Selina S. Sagayam – London (+44 (0) 20 7071 4263, [email protected])
Maria L. Banda – Washington, D.C. (+1 202-887-3678, [email protected])

Please also feel free to contact the following practice group leaders:

Environmental, Social and Governance (ESG) Group:
Susy Bullock – London (+44 (0) 20 7071 4283, [email protected])
Elizabeth Ising – Washington, D.C. (+1 202-955-8287, [email protected])
Perlette M. Jura – Los Angeles (+1 213-229-7121, [email protected])
Ronald Kirk – Dallas (+1 214-698-3295, [email protected])
Michael K. Murphy – Washington, D.C. (+1 202-955-8238, [email protected])
Selina S. Sagayam – London (+44 (0) 20 7071 4263, [email protected])

Transnational Litigation Group:
Susy Bullock – London (+44 (0) 20 7071 4283, [email protected])
Perlette Michèle Jura – Los Angeles (+1 213-229-7121, [email protected])
Andrea E. Neuman – New York (+1 212-351-3883, [email protected])
William E. Thomson – Los Angeles (+1 213-229-7891, [email protected])

International Arbitration Group:
Cyrus Benson – London (+44 (0) 20 7071 4239, [email protected])
Penny Madden QC – London (+44 (0) 20 7071 4226, [email protected])

Attorney Advertising: The enclosed materials have been prepared for general informational purposes only and are not intended as legal advice.