Not a Treaty, But Not a Waste: The Value of Plastic Pollution Negotiations

By Aditya Kumar, he is a fourth year law student at Government Law College, Mumbai.

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Introduction

The failure of the Intergovernmental Negotiating Committee on Plastic Pollution (“INC”) negotiations raises the question: can international law still rise to the challenge of plastic pollution? About 20 million metric tons of plastic pollutes the environment annually. The UN Environment Assembly (“UNEA”) passed Resolution 5/14 in 2022 to convene an INC to develop an instrument to tackle plastic pollution (“treaty” or “plastics treaty”). The treaty is envisaged to address the full cycle of plastics from production to disposal.

After four sessions since 2022, the latest (INC-5.2) in August 2025 collapsed, leaving the treaty elusive. The session took place in 2 parts, first in Busan and then in Geneva, where no consensus could be reached and the talks failed. With no next steps in the foreseeable future, it will be a significant period before the nations regroup, making it is vital to assess lessons and rethink the plastics treaty.

Background: The Problem and Negotiations

The consensus to tackle plastic pollution is not very recent. The Clean Seas campaign launched by the UNEP in 2017, was aimed at reducing marine plastic pollution. However, plastics present a paradigmatic test for international environmental law (“IEL”) because they cut across waste, chemicals, and trade regimes.

The INC was divided between two main factions— the High Ambition Coalition (“Coalition”) and petrochemical producing nations (“PPN”). The Coalition, comprising over 100 countries including the EU, Rwanda, and Pacific states, demanded production limits, and displayed strong alignment among diverse nations. However, the PPN resisted such measures, and combined with other structural problems, this resistance led to the collapse of the talks.

Why the Negotiations Failed

1. Fragmentation of IEL

The root cause of the breakdown is the fragmentation of IEL. The plastics treaty was envisioned like the United Nations Framework Convention on Climate Change or the World Health Organisation Framework Convention on Tobacco Control. It could have been a framework that set broad principles, obligations, and institutional structures, later to be supplemented by detailed protocols. Such a holistic approach would address plastics across their entire life cycle, including extraction of raw materials, production, trade, consumption, disposal, and recycling.

However, the problem arises since plastics touch multiple areas of international law, and those regimes do not always align. The Basel Convention (1989), [E1] or the waste regime, regulates hazardous wastes and their transboundary movement and the legal logic is minimization, safe disposal, and environmental safeguards, emphasized by countries vulnerable to toxic dumping. The 2019 plastic amendments cover certain waste categories. The chemical regimes i.e., the Stockholm (2001) and Rotterdam (1998) Conventions regulate hazardous chemicals and pesticides some of which are used in plastics, aiming to regulate their production and trade. The logic therefore is substance-specific bans or restrictions, emphasized by environmental and health coalitions. Lastly, the trade regime through the WTO, GATT, TRIPS, etc., considers plastics as legitimate goods in global commerce. Restrictions like bans or quotas in plastic trade risk being challenged as trade barriers. Thus, the legal logic in trade law is market access, non-discrimination, and free trade, emphasized by PPN countries.

The negotiations had to balance the aforesaid logics with respect to plastics. Instead of a single integrated vision, negotiations fragmented along these pre-existing silos, demonstrating how regime complexity in international law can paralyze new treaty-making.

 

2. North-South Divide and Common but Differentiated Responsibilities

Another reason for the breakdown in talks was the apparent north-south divide and the Principle of Common but Differentiated Responsibilities (“CBDR”). Naturally, developing states demanded technology transfer, funding, and recognition of their limited capacity, invoking CBDR. Developed states resisted binding financial obligations, arguing for shared but not differentiated duties. This clash mirrors earlier climate negotiations and demonstrates CBDR’s contested application beyond climate law, once again pointing towards the fragmentation of IEL.

3. Sovereignty and Resource Rights

PPN countries such as Saudi Arabia and Russia invoked sovereignty and resource rights, to resist caps on plastic production, framing them as intrusions into domestic energy policy. The aspect of sovereignty and resource rights are enshrined in the UNGA Resolution 1803. This also reflects the tension between environmental obligation erga omnes and permanent sovereignty over resources.

4. Consensus-based Decision Making

Another reason for breakdown was the reliance on consensus-based decision making, a method followed earlier in the UNCLOS III and early climate talks. Consensus-based decision making requires every State to compromise in order to finalise a treaty, and the absence of a formal objection often allows states to abstain without blocking. Scholars argue, however, that this approach frequently produces lowest-common-denominator treaties (for example, the Paris Agreement), or outright deadlock, since even one state can veto progress.

5. Industry Lobbying and Soft Law Approaches

Lastly, industry lobbying watered down ambition and as a result, soft law approaches gained traction at the negotiations. Fossil fuel and petrochemical industry lobbying diluted the ambitions of the treaty. Furthermore, the push for voluntary recycling targets echoes the soft law trend in IEL. It reflects non-binding guidelines that lack enforceability, reflecting a broader structural weakness in international law where powerful private actors can shape state preferences.

Positives from the Negotiations (Seeds of Norm Creation)

Although the treaty has failed to materialize for now, the negotiations have seeded norm creation. Even if the treaty was not adopted, the very process of sustained negotiations contributes to progressive development of international law.

The UNEA Resolution 5/14 and the draft treaty itself may contribute to opinio juris over time. It is certain that the draft treaty will outlive the failed negotiations and surface in subsequent negotiations. Next, the consolidation of Coalition countries, calling for a legally binding instrument on curbing plastic production and pollution, marks an important moment in coalition building. Furthermore, the dialogue between China and the EU, who are often at odds in environmental diplomacy, was a modest but noteworthy breakthrough. Also noteworthy, the negotiations witnessed unprecedented civil society participation, reframing plastics as a human rights issue.

The Way Forward

1. Framework-Protocols Approach

A practical approach to plastics treaty is creating a framework convention with protocols. Just as the Vienna Convention (1985) was followed by a more robust Montreal Protocol, the plastics regime can begin with a broad framework convention. This would enshrine guiding principles such as the precautionary principle, polluter-pays, CBDR, etc., and then delegate specific issue such as plastic production limits, chemicals regulation, plastic waste trade, etc., to subsequent protocols. This sequencing allows states to commit politically now while negotiating technical measures later.

2. Qualified Majority Lawmaking

As discussed earlier, since consensus has proven unworkable, the precedents of Montreal Protocol’s Amendment System and the CITES COP demonstrate that qualified majority decision-making can reconcile universality with ambition. This entails that plastics negotiators should consider moving away from unanimity to at least a two-thirds majority voting rule for amendments, ensuring progress without perpetual vetoes by a few PPN countries.

3. Regional Custom and Soft Harmonisation

Although ambitious, in absence of a universal treaty, regional and multilateral organisations can set de facto international standards. The EU’s Single-Use Plastics Directive, Africa’s continental strategy, and ASEAN’s marine plastics initiatives could influence the emergence of global standards and, if coupled with widespread practice could over time, crystallise into opinio juris and further into custom. Building on the same, a coalition of ambitious states can proceed with a plastics production cap treaty in the meantime, until there is a comprehensive plastics treaty. This would entail creating a “club good” with trade advantages such as preferential market access, labelling standards, etc. Such minilateralism has precedent in the Proliferation Security Initiative and regional fisheries agreements, which have later diffused into wider regimes.

4. Financing and Technology Transfer Mechanisms

To promote equity and embedding CBDR in practical terms, a Global Plastics Fund, mirroring the Multilateral Fund of the Montreal Protocol, financed through producer levies or international plastic taxes can be set up. This would enhance financing, capacity-building, and technology transfer from the Global North and Coalition countries to Global South countries.

5. Innovative Compliance Mechanisms

A system of innovative compliance mechanisms can be an accommodative approach as IEL shifts from coercive sanctions to facilitative compliance. The treaty could adopt transparency frameworks akin to Paris Agreement, implementation committee in the Montreal Protocol style, and non-compliance procedures focused on assistance rather than punitive actions. Such a design would increase legitimacy and encourage universal ratification, especially by PPN countries and Global South states.

Conclusion

In IEL, stalemates often precede new norms. Plastics will test the same normative struggles we saw in climate and ozone law viz. sovereignty versus solidarity, equity versus ambition, consensus versus effectiveness. The plastics treaty is different in the sense that it touches upon various aspects of international legal order ranging from environment to trade. Thus, the approach towards a plastics treaty should be radical albeit cumulative of the precedents in IEL lawmaking.

A framework-plus-protocol design, strengthen regional norm-setting, and adopt equity mechanisms, can help the plastics regime can gain consensus. A draft treaty already in hand, a large Coalition in agreement, a dialogue between two discrepant powers, and the reaffirmation of the intersectionality of IEL and human rights, indicates that future legal convergence can coalesce.