Better No Treaty Than a Weak One – A Summary of INC-5

In March 2022, as part of efforts to address the triple planetary crisis, the United Nations Environment Assembly (UNEA) unanimously adopted a resolution calling for the negotiation of an international legally binding instrument to end plastic pollution – the Plastics Treaty. Negotiations began later that year, in November 2022, under the format of an Intergovernmental Negotiating Committee (INC), with the ambition to carry out five negotiating rounds and concluding the agreement by the end of 2024. As of November 2024, the INC had convened four times. INC-4 concluded in Ottawa with a complex compiled draft text. Members also agreed to conduct intersessional work and convene two ad hoc open-ended expert groups to discuss issues related to means of implementation (including financial mechanisms), and approaches to plastic products and chemicals of concern. INC-5 was scheduled to take place in late November 2024 in Busan, Republic of Korea. I attended these meetings as an observer, conducting empirical research as part of my PhD work at Maastricht University’s Faculty of Law. This blog post offers my impressions, observations, and initial reflections on how the negotiations unfolded during INC-5.

How the Week Unfolded in Busan

The fifth meeting of the Plastics Treaty Intergovernmental Negotiating Committee (INC-5) started on November 25, 2024. It was a sunny but cold morning in Busan, Republic of Korea, and the plenary room of the Exhibition and Convention Center (BEXCO) was overcrowded – with more than 3,300 participants – and full of enthusiasm. But after the welcoming speeches and the Chair’s introduction and explanation of his Non-paper 3, the mood quickly shifted to scepticism. Members’ disagreement over procedural aspects and modalities of negotiation was once again going to take hours of discussions. These matters had already been at the core of previous INC and were parked to give space for substantive negotiations, which in INC-4 ended with a complex and almost unreadable compiled draft text.

After maintaining informal conversations with members during the intersessional work between INC-4 and INC-5, the Chair developed a new non-paper (Non-paper 3) with the hope to facilitate the discussions and support the finalization of the negotiations. The simplified text (only 18 pages long compared to the 73 pages of the compiled draft text), which focuses on essential elements and leaves many aspects to be developed by the future Conference of the Parties (COP), was proposed as the basis for negotiations during INC-5. This was a daring move by the Chair. The proposed text was not negotiated by the members and not all their views and proposals were reflected there. Hence, the likelihood of members opposing it was high. After more than seven hours of deliberations, the Chair’s Non-paper 3 was approved as the starting point for discussions, with the understanding that the text was completely between brackets, and members could still use and refer to the compiled text and submit in-session proposals. Indeed, the non-paper did not provide text proposals for every article; some only contained a list of desired elements. This lack of concrete text proved challenging during discussions in the negotiating groups. The Committee agreed to immediately begin working in contact groups –negotiation groups– and to reconvene in a plenary session on Wednesday to assess the status of the negotiations and eventually refer the agreed text to the legal drafting group. The aim was for the contact groups to conclude the negotiations on Friday, and for the legal drafting group to finish its work on Saturday.

The work in contact groups started at 8 pm on Monday. Four contact groups, each of them led by two co-chairs, were established to negotiate specific parts of the text.[1] The groups followed a similar mode of work: they began by reviewing the text proposed by the Chair and receiving general comments from the members, followed with the presentation of members’ in-session proposals. Only at later stage they started negotiating the text of the relevant provisions, line by line. Nonetheless, procedural matters entered the agenda again before substantive issues started being discussed. Statements that highlighted the uncertainty and lack of understanding of the modalities of work prevailed that evening, and the first negotiation day ended with no progress on substantive topics.

[1] See page 5 of this document for the division of topics among contact groups.

The second day of negotiations in the contact groups proceeded very slowly, and the simplified version of the text started to resemble a ‘.2 version’ of the compiled text, with many brackets per line. In nearly all contact groups, members requested the co-chairs to summarise the proposals and opinions expressed during the sessions and produce a text that reflects them. By the third day, it was clear that progress was insufficient and that the groups were unable to meet the deadline set on Monday. They had no concrete outcomes to present to the plenary and no text to submit to the legal drafting team. The plenary meeting held on Wednesday evening revealed that the time planned for actual negotiations was scarce, and disappointment started to show in the faces of some negotiators and observers, until movement in the left corner of the room captured attention and brought renewed energy to the participants. ‘Let us speak, Chair’ shouted the representative from the International Indigenous Forum on Plastic. ‘We need a strong treaty that recognises us as rightsholders, not stakeholders… a treaty that sets legally binding targets to phase out plastics… that eliminates harmful chemicals on supply chains, and protects ecosystems and human health… a treaty that holds polluters accountable… A weak treaty is a failed treaty, the time for transformation and action is now,’ said the delegate, followed by the Global Youth Coalition on Plastic Pollution that also called for an ambitious treaty that reduces the production, supply, and demand of plastics.

INC-5 conference

Members continued their work in contact groups that evening, and the following day the four groups started to meet in parallel. Nonetheless, progress was again scarce. Thursday ended with no agreed text. In some cases, where the Chair’s non-paper contained no text for a specific provision, members submitted proposals that counted with ample support. That was the case of the proposal submitted by the Africa Group, GRULAC, Cook Islands, Fiji and the Federate States of Micronesia regarding the provision on means of implementation, specifically the financial mechanism of the future instrument. Despite receiving the support of 120 members, there was no consensus to accept this proposal as the basis for negotiation. Frustration started to prevail.

On Friday, negotiations continued in informal settings and closed-door meetings. These meetings were not open to observers. Comments regarding the lack of transparency in this process were recurring among observers, and intensified when the plenary meeting planned for that evening was cancelled. Small delegations –primarily those of developing and least developed countries– also complained about their impossibility to participate in all discussions during parallel meetings. On Saturday, a new non-paper was published by the Chair. The discontent of many members, particularly developing countries, was palpable. The new text disregarded many of their proposals and was seen as a regression from the previous text.

The Last Day: A New Chair’s Text

Sunday started with a new Chair’s text. ‘It’s a better text…’ was a phrase heard several times in the BEXCO corridors, followed with the caveat ‘but it’s not a negotiated text,’ alluding to the fact that the text was not agreed in the contact groups, neither approved by the plenary meeting. Instead, it was yet another individual proposal drafted by the Chair, based on the co-chairs’ work. This sentiment resurfaced during the final plenary meeting, which began at 8:30 pm on Sunday evening. The delegates’ frustration and exhaustion were evident. The Committee did not manage to complete its mandate. INC-5 was ending with no international binding instrument to counter plastic pollution, not even an agreed negotiated draft text. ‘At least we don’t have a weak treaty…’ became the prevailing positive conclusion among many civil society representatives in the room. 

After the co-chairs of the four contact groups presented their summary report, the Chair introduced the new text circulated earlier that day. He acknowledged that the text reflects his perspective on the current state of negotiations, and that it is neither final nor conclusive, but represents an effort to capture progress and underlines unresolved issues that require more time to be effectively addressed. The Chair ended his concise message with the proposal to use this new text as the starting point and basis for negotiation ‘when the session is resumed at a later date.’ This carefully chosen set of words aimed to avoid a legal procedural problem that would have arisen if the Committee had decided to convene an INC-6. The Committee has no mandate for that. Hence, technically, INC-5 did not end, and members will resume their discussions in 2025.

Chair inc speaking

Following the statements of more than 50 members, at 2 am on Monday, December 2, 2024, the Chair formally closed the plenary meeting with the Committee’ agreement to use the new Chair’s text as the basis for negotiations during the upcoming resumed session. This agreement was not reached without disagreement. While members expressed their gratitude to the Chair for his efforts, they also voiced their discontent over the exclusion of some of their proposals from the new text, the fact that the text was not a negotiated document, and the conclusion of another INC with a text entirely in brackets. A date to resume the negotiations was not agreed. However, the need to continue working in informal settings throughout the intersessional period was identified as a must to conclude the negotiations in the next session. 

The Road to INC-5.2

The road to convergence will be difficult, but hopefully not impossible. Discrepancies among members primarily revolve around the scope of the treaty, the type and extent of control measures, the means of implementation, and the decisions of the future COP. Regarding the scope of the treaty, the group of High Ambition Countries (HAC) advocate for a treaty that addresses the full life cycle of plastics, including its production stage, while the group of Like-minded Countries (LMC) –primarily composed of fossil fuel and polymers-producing states– insist on a treaty focused solely on plastic pollution, which, according to their understanding, only relates to disposal and waste management issues. Consequently, in terms of control measures, the HAC advocate for the inclusion of obligations to reduce the production of problematic plastics and chemicals of concern –banning certain types of plastics, e.g., single-use plastics and phasing out polymers that are difficult to recycle, as well as hazardous chemicals used in the production of polymers. On the contrary, the LMC refuse the inclusion of provisions that cap the production of plastics, and any control measures that affect international trade, since they see them as a threat to their economic and social development. Moderated views in the LMC indicate that there might be room for prohibiting certain types of plastics –like single-use plastics– if different national circumstances are considered. 

Regarding means of implementation, the differences lie not so much in the ambition of the countries, but rather in their level of development. Developing countries, including least developed countries (LDCs) and small islands developing states (SIDS), advocate for control measures coupled with robust obligations on means of implementation for developed countries to ensure just transitions. They argue that these obligations should include the allocation of adequate, accessible, new, and additional financial resources through a new dedicated independent multilateral fund operating under the authority of the COP, and the provision of capacity building, technical assistance, and technology transfer. While agreeing on the need to include means of implementation that can guarantee the effective compliance of the instrument, developed countries propose a broader alternative: each party commits to provide resources for the implementation of the treaty, and the obligation to provide financial assistance should not be directed only to developed countries, but include all parties with the financial capacity to do so –a phrase that indirectly refers to emerging economies, particularly China. Moreover, instead of creating a new multilateral fund they propose to use an existing one: the Global Environment Facility Trust Fund. Both groups of countries agree on the need to involve the private sector to increase sources of funding. The difference between their proposals is how to do it. For instance, in a proposal that has encountered increasing support, Ghana advocates for the inclusion of a plastic polymer fee –a share of the collected revenues would contribute to the financial mechanism.  

Finally, regarding the decisions of the COP –including amendments to the convention– several members emphasise that decisions should be taken by consensus, but also propose the inclusion of a voting option when consensus cannot be achieved. The LMC and some developing countries oppose this idea and highlight consensus as the basis for multilateralism.

The question is whether, in the current geopolitical scenario, multilateralism remains fit for purpose and can effectively address one of the most pressing environmental, biodiversity and human health crisis of our time –and that of future generations: plastic pollution. ‘Every day of delay is a day against humanity. postponing negotiations does not postpone the crisis. This is not just an environmental crisis it’s a moral failure…’ expressed the head of Panama's delegation, Juan Carlos Monterrey Gomez, at INC-5 final plenary meeting. During that meeting, many members expressed their belief in multilateralism and reaffirmed their commitment to achieving an ambitious, comprehensive, and inclusive treaty. The next step is to agree on a date to resume negotiations. 2024 does not end with a finalized Plastics Treaty; may it become the first milestone of multilateralism in 2025.

postcard conference busan
Tags:

M.B. Gracia

Belén Gracia is a PhD Candidate at Maastricht University, Faculty of Law. Her research explores the intersection between international law and the circular economy in plastics, with a focus in developing countries. Her PhD is under the supervision of Prof. Dominic Coppens, Dr. Iveta Alexovičová and Dr. André Nunes Chaib.

Also read