This is the second of three parts of the conversation. We take you back into each meeting of the treaty negotiations – INC-1 in Uruguay, INC-2 in France and INC-3 in Kenya. We’ll talk diplomacy and give you a better understanding of what’s going on on the international stage.
Transcript
Music – Plink by Dorian Roy (Theme)
Magnus Løvold
Without clarity on the decision-making rule, it’s very hard to make decisions. And you tend inevitably to end up with what I would call lowest-common-denominator outcomes. I think that’s what we’ve seen in the climate COPs. We see lowest-common-denominator outcomes, COP after COP after COP.
Anja Krieger
Welcome to Plastisphere, the podcast on plastics, people, the planet — and politics! My name is Anja Krieger. This year, we focus on the negotiations for the global plastics treaty. At the moment, they are haunted by some major issues that have long stalled progress on other problems as well, like climate change and biodiversity loss.
To understand what’s happening, I teamed up with Magnus Løvold, an expert in diplomacy and international law. Magnus was present at all the meetings of the Intergovernmental Negotiation Committee for the plastics treaty, the so-called “INC”. When I followed the INCs from afar, his blogs popped up in my feed and helped me understand the negotiations so much better. I really love his witty and smart writing, which you find on “Points of Order”, his blog on Medium.
Now, I thought you’d enjoy his accounts as well, so here comes the second part of our recap of plastic diplomacy. We’ll travel to Paris in the summer of 2023, where the second negotiating meeting took place. If you haven’t listened to our recap of the first INC in Uruguay, I recommend you go back an episode and start listening there.
At the end of the last episode, we discussed the potential options paper — basically, a list of ideas to tackle plastic pollution. But Magnus had a bunch of doubts about it. He said it included everything you could think of: reducing plastic production, regulating materials, products, chemicals, waste management and clean-up. But it didn’t represent a coherent and binding plan.
Magnus Løvold
…and so I felt when reading it that it didn’t really provide the committee with a kind of clarity that it needed to enter into a more substantive discussion at the next INC in Paris.
Anja Krieger
That leads us to Paris. There was quite some drama even ahead of time, right? Tell us more about what happened there.
Magnus Løvold:
Yeah. So Paris, the Paris session of the plastic pollution negotiations, what we call the INC-2, was a very difficult session. And I think that’s where many had expected and hoped that now negotiations will really start. Now we will start negotiating the actual substantive content and we will get down to business a little bit. Get down from this very general level where we were in Uruguay and actually start negotiating what this treaty should do.
In the run up to the meeting — it had already started a few weeks before, with some problems, because this meeting would take place in the UNESCO headquarters in Paris — it turned out that UNESCO headquarters had quite limited capacity. And, of course, so did interest in the process — it has grown and it continues to grow — and there were so many people that had a stake in this process who wished to attend. But it turned out that there were some significant space limitations there, and therefore many civil-society organisations might not be allowed access to the room. That set the stage for a little bit of a bad start for this meeting. But the meeting started and they accepted the CSOs that they could accept.
And then it opened, with a very grandiose video statement by the president of the French Republic, Emmanuel Macron, talking about his visions for this treaty and what he thinks it should contain. I was there in the room, and I remember thinking, “Oh, this feels important. Now I feel as if this week we’re going to be able to see something important happen and we’re going to get a direction to these negotiations. We need that now because there’s not that many sessions to negotiate this treaty.”
But then, almost immediately when the session really started the question of adopting rules of procedures arose. The chair had promised to conduct informal consultations to resolve the issue, the brackets in rule 37. Yet he had to report that he had made no progress on that. So he just suggested that we continue to provisionally apply the rules of procedure, and continue consultations.
Some countries were not happy with that, and they had been preparing to object to this provisional application of the rules of procedure, and particularly to prevent any voting on substantive matters taking place. They had prepared to do that. It was really exacerbated by the fact that, at the INC-2, the committee had to elect its so-called bureau. A bureau of a committee is a group of representatives of countries that have been elected to coordinate the committee’s work. It’s the chair and a few others.
It can vary in size. I don’t remember exactly how many bureau members there are in this committee, but I think it’s about nine or something. It’s a fairly small group. And in the bureau it’s represented by the regions, like the Western European and others group, or the Latin American and Caribbean Group, or the African group, or the Asia Pacific Group. They all coordinate internally and they say, “Okay, we’re going to propose these two candidates from our region to the bureau”. And normally that’s totally fine, right?
But the problem was that both Russia and Ukraine are part of the Eastern European group. There is currently a war in Ukraine as a result of Russia’s invasion of that country, so the atmosphere in the Eastern European group is not great at the moment. As a result, they had not been able to agree on a set of candidates. And we knew then that the only way to actually constitute a bureau was to go to elections, taken by a vote.
Now, this is a procedural matter. It’s not a substantive matter. But still, a lot of countries felt then, “Okay, we’re deeply uncomfortable about this”. Accordingly, they started to request so-called assurances from the chair that this vote on the bureau election would constitute an exceptional circumstance that would not happen again. “We’re just doing this because we absolutely have to” was their stance, which led to further discussion. There were even countries that were asking, “How can you do this since we haven’t adopted the rules of procedure?”, which of course stipulates how bureaus should be elected. What does a provisional application of rules of procedure really mean? What are the legal implications of that? There were a lot of questions, a lot of back and forth.
I don’t think that the chair or the Secretariat were really prepared to have that kind of discussion. But that discussion occurred. Now they did manage to, in the end, have bureau elections. They accepted it’s a procedural matter. But they had to spend quite a lot of time organising these elections.
The next item on the agenda was the adoption of the rules of procedure, because since they hadn’t been adopted, they also had to be formally put on the agenda. The chair came to that and he again said, “I suggest that we provisionally apply these rules”; that led to a big debate. And it took days to resolve. Yet the meeting was scheduled for only five days, which didn’t leave much time for anything else. It was supposed to be a negotiation on substance. But instead, the committee was embroiled in this discussion about the decision-making rule. In the end, after a lot of debate and a lot of back and forth, they did manage to agree on a so-called interpretive statement on the application of the decision-making rule.
Basically, it just makes the whole issue very ambiguous. It notes that there are these differing views on the decision-making rule in the committee. And then it suggests that, if it ever comes to actually enforcing the decision-making rule — meaning that if someone ever calls for a vote on substantive matters — this disagreement should be recalled. It’s all very vague. It’s a masterful display of what is sometimes called constructive ambiguity, because they agreed to disagree, and they put that down in a text that they decided on. Like, “We agree to disagree on this to enable us to move forward”. So, in that sense, it did the trick. It did enable the committee — at long last, more than halfway through that session — to actually start discussion about the substance of the treaty and discussing the content of the potential options paper.
But a lot of time had been wasted. And it didn’t really resolve the issue. It fudged it. It was even less clear after that exactly what kind of decision-making rule the committee was operating under. Could it go to a vote if need be as the last resort? Well, some countries still believe that that was still a legal option, while others made it very clear that, in light of this statement, we cannot vote. Everything needs to be decided by consensus. So nothing was resolved. The whole issue was kicked down the road and deferred. But It enabled the committee to move on and continue to discuss substance.
But it also introduced a major risk to the process: if it ever came to a point where decisions have to be made — and, at one point, decisions will have to be made in this committee — this matter will come up again. Yet it was very unclear how it would be resolved. So it was a big drama. And I think a lot of the observers were like, “What? What is happening here? I thought we were at a meeting where people are supposed to, or states are supposed to, discuss the content of a treaty on plastic pollution, and instead they’re spending so much time talking about decision-making and rules of procedure!”
I found it frustrating. But also, I think it’s very important because, at the end of the day, without an effective decision-making rule in this committee, it’s very hard for me to see how these negotiations will end up with anything close to an effective treaty. For me, it was very concerning in a sense that they fudged the issue even more, and that there was such strong opposition to the rule that had been developed already in Dakar a year earlier, and that there had been agreed and there was reopening this issue in an effort to, maybe for some countries, just to delay the process.
Anja Krieger
Then maybe your blog post title confused me a little bit. I think you talked about the success of the magical Ministry of Diplomacy or something like that.
Magnus Løvold
Exactly. I had a blog post that was titled, I think, “Report from the Ministry of Magical Affairs”; Harry Potter was the inspiration. It’s the interpretive statement; it was about that. It seems as if they were agreeing because they were able to make a decision and they were able to move forward. So it creates this impression of agreement in the committee, but actually it just hides the reality of fundamental disagreement about the rules of the game, the rules of the committee. So in that sense, it was a little bit like magic.
Anja Krieger
Since you initially came in with this hope that this treaty process would set a successful example, showing that international treaties can work. Were you still optimistic or could you regain your optimism after that?
Magnus Løvold
Well, yeah. I think it was inevitable that this debate and this issue would come up. We have seen that decision-making in other multilateral arenas. It’s been a contentious issue for many years. As an example: on climate change, the UNFCCC, they have their conference of parties, right? And if you look into the rules of procedure to the UNFCCC, you will notice that they haven’t been able to agree on their decision-making rule; that’s actually in brackets. So it means that there’s no agreement on how the UNFCCC, or the parties to the UNFCCC, should make their decisions. And that’s been the case since, I think, 1996. And every COP since then has just deferred the issue, kicked it down the road.
People ask, “Why hasn’t there been more progress on international climate governance?” I think this is a big part of the reason, because, without clarity on the decision-making rule, it’s very hard to make decisions. You tend inevitably to end up with what I would call lowest-common-denominator outcomes. I think that’s what we’ve seen in the climate COPs. We see lowest-common-denominator outcomes, COP after COP after COP. The reason is that there is no voting option in the rules of procedure to the UNFCCC. This has been a problem in some multilateral environmental agreements for some time.
Of course, in the case of the INC we’re talking about treaty negotiations. We’re not talking about an established treaty with a conference of parties and the rules of procedure of that. It’s, in a sense, therefore more concerning that there are brackets in the rules of a negotiation committee, because there is no precedent for that. Never seen that before. But this is a bit of a problem that has been there in other treaties, and it’s been around for some time.
We need to resolve this. If we’re going to have any chance of actually addressing the challenges and the problems that a UNFCCC — and the Paris Agreement, the several Agreements under that — are seeking to address (climate change), or if we are going to have any chance of resolving the problems that the Convention on Biological Diversity is trying to address, there needs to be a possibility of a large majority of countries coming together and forcing decisions through a vote — as a last resort, if consensus cannot be reached.
I see this Plastics Treaty process that we’re now involved in as an example of where, actually, it is possible to have that debate about rules of procedure, to have that debate about the decision-making rule, and that debate actually ending with countries deciding “No, actually we do want to have the option, as a last resort, of taking substantive matters to a vote. So, if we win this, if we’re able to argue convincingly of the need for a majority decision-making, as a last resort, on plastic pollution, then that will also set a precedent and inspire similar kinds of decisions, I believe, on climate change and on biological diversity and, indeed, on also other problems of global concern.
So that’s why, although it’s frustrating when these issues come up, I think it was inevitable, and I think the fact that it came up gave the countries that really want to solve this problem, and want to solve other environmental problems, an opportunity to sharpen their arguments and push this through. Because the good news is that there is actually a large majority of countries that want to have a decision-making rule allowing for voting as a last resort.
We saw that in Paris. There is a small, fairly small group of countries — like China, like India, like Brazil, for instance — advocating for consensus. But the vast majority of countries would like decisions to be made by a vote as a last resort. That is very encouraging. I think the challenge now, after Paris, is to really try to prop up — and encourage and inspire — these countries to really force a decision through on this. They can do it. There is a procedural path for it, but it requires a little bit of courage, because I think they just need to realize that what they’re doing here will not just have an impact on this treaty, but it will have an impact on the regulation of other environmental issues as well.
Anja Krieger:
I love your optimism.
Music – Plink by Dorian Roy
Anja Krieger
Now, there’s a third meeting that we haven’t talked about: The INC-3 in the winter of 2023 in Nairobi, Kenya.
Magnus Løvold
There was some excitement around, “Okay, finally we’re going somewhere. We have a zero draft. We have some legal text. This could actually end up as a treaty.” It was possible to see how this could end up as a treaty that could be adopted. It was an optimistic, I think, attitude at the beginning … great hopes that this would finally lead somewhere.
Anja Krieger
That’s up next time on Plastisphere. Join me and Magnus for the third round of our recap, to learn what happened in Kenya. If you liked this episode, please rate and review the podcast online, and tell your friends about it. This is an independent show. I currently have no financial backer, pay all costs out of my own pocket and produce the programme in my spare time. So to support new episodes and help me continue this project, please go to plastisphere.earth/support. Thanks for listening, and see you next time.
Many thanks to Ronald Steenblik for help with editing this transcript.