SEPTEMBER 2021

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World Wide Fund for Nature (WWF)WWF is one of the world’s largest and most experienced independent conservation organizations, withover 5 million supporters and a global network active in more than 100 countries. WWF’s mission is tostop the degradation of the planet’s natural environment and to build a future in which humans live inharmony with nature by conserving the world’s biological diversity, ensuring the sustainable use ofrenewable natural resources, and promoting the reduction of pollution and wasteful consumption.
Published in September 2021 by WWF.
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publisher as the copyright owner.
Cover photo: © James Morgan / WWF.
© 2021 by WWF; All rights reserved.
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To protect nature and people from the harmful impacts of plastic
pollution, we need an ambitious new legally binding international
agreement that can hold States to a common standard of action. The
new agreement must specify, through clear and universally applicable
rules, what each State party will be required to do to tackle theproblem, and it must include provisions to ensure that those rules canbe evaluated and gradually strengthened over time. To have an
impact, the new agreement must also be shaped in a way that
promotes equity and incentivizes participation and compliance. An
effective global response to plastic pollution will require significant
changes to the policies and practices of all States. A new treaty should
provide a credible roadmap towards the long-term goal of plastic freeoceans.

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A majority of UN Member States now supports the development a newtreaty on marine plastic pollution. This is a significant threshold, as it
constitutes the number required for the United Nations Environment
Assembly (UNEA) to take decisions. It is therefore increasingly likely that adecision to start formal negotiations will be taken at the resumed session of
UNEA 5, in February 2022.
The case for a new treaty on plastic pollution is clear. Plastic pollution
in the world’s oceans is at record levels and rising by the day. Unlessurgent action is taken, the problem will get progressively worse over the
coming decades. Plastic litter is already harming many marine species andis likely to have an impact on human health in ways we do not yet fully
understand. The absence of a dedicated global governance structure has
left an accountability gap in the global management of plastics. A newinternational legal instrument is required to overcome the “commons
dilemma” of plastic pollution.
With the prospects for adopting a negotiation mandate improving, thefocus of the discussions has begun to shift, from rationale to content. Overthe past year, several reports on the possible elements of a new treaty
have been published, and more are in the pipeline. Multistakeholder
dialogues have been initiated, and in September 2021, the first ministerial
conference on marine litter and plastic pollution will be hosted by Ecuador,
Germany, Ghana, and Viet Nam. A key purpose of that conference is totake further steps towards a new global agreement.
The start of formal intergovernmental negotiations will be a key
milestone in the process towards a new treaty. It will signal thatgovernments have accepted the need for a treaty and agreed to start
discussions on what it should look like. The key question will no longer be
why a treaty is needed, but what the treaty should contain. This will markthe start of a new and critical phase in the development of the new regime.
The eventual outcome of the negotiations, a legally binding treaty text, will
lay the foundations for actions and activities on all levels for decades tocome and may to a large extent determine whether the international
community will succeed in its efforts to effectively address the harmful
impacts of plastic pollution.
The growing support for a new treaty is a very positive sign. It
indicates that the international community recognizes the urgency of the
problem and is ready to commit at the highest level, in a legally binding
format, to tackle the problem of plastic pollution. This said, there are many
stumbling blocks on the road to an effective global governance framework.
Too often, States have allowed consensus to trump ambition in
multilateral environmental diplomacy. This tendency, combined with the45regulatory complexity of plastic pollution, means there is a real risk that thenegotiations will produce a paper tiger: a weak policy framework with a hostof lofty visions and appealing principles, but few specific obligations tomatch them.
Developing an effective treaty on plastic pollution will likely be moredifficult than it was to put in place the legal frameworks on mercury or
persistent organic pollutants. The ubiquity of plastics in the modern
economy, the scale of the problem, and the uncertainty surrounding
causes, effects, and response options puts the issue in a different category.
To the extent that its solution will require transformative systemic change
and cross-sectoral regulatory interventions, plastic pollution appears moreakin to the problems of climate change or loss of biodiversity. On boththose accounts, the international community has struggled to find effective
international legal responses. Three decades after the adoption of theConvention on Biological Diversity (CBD), humanity finds itself in a
biodiversity crisis, with at least ten thousand species going extinct every
year. Similarly, thirty years after the adoption of the United Nations
Framework Convention on Climate Change (UNFCCC), human activity
continues to threaten the stability of Earth’s climate.
The examples of CBD and UNFCCC underscore the importance ofgetting things right from the start in the negotiations on a new plastic
pollution treaty. If done right, a new treaty can help States and otherstakeholders overcome the urgent collective action problem posed byplastic pollution. By setting a common standard of action, a new treaty
would create a level playing field across the plastic value chain, thereby
accelerating industry transformation and existing voluntary initiatives.
Every global issue is unique and requires a tailor-made response. Butthat does not mean that the wheel must be continuously reinvented. To
ensure that the new plastic pollution regime gets off to the best possible
start, negotiators should adopt an evidence-based approach, meaning thatthe development of the new treaty should be guided by extensive mappingand solid analysis of existing treaties and regimes, with a view to better
understanding how past success might be replicated and past mistakes
avoided.
The purpose of this brief is to highlight some of these lessons, and totranslate them into a set of recommendations, or success criteria, for thedesign of the new agreement.

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7© Basil D Soufi / Creative CommonsTo make sure States’ commitments to tackle the problem areanchored at the highest possible political level, the new global
agreement on plastic pollution should be legally binding.

Agreements between States come in two main forms: legally binding
and non-legally binding. Legally binding agreements are akin to contracts
in domestic law. Non-legally binding agreements, or political agreements,
can be thought of as pledges or promises between States to do or refrainfrom doing something. The key difference between legally binding
agreements and non-legally binding international agreements is that theformer is governed by international law, while the latter is not.

Good examples:
UNCLOS,VCPOL/Montreal,
Basel, Stockholm,
Minamata,
CLRTAP,MARPOL, etc.

If an adequate response to a given issue requires a long-term
commitment, it is better to spend some extra time to develop a legallybinding agreement than to rush through a political declaration or a voluntary
framework. By negotiating and concluding a legally binding instrument,
States signal their intentions with special intensity and gravity. The
commitments made in a legally binding instrument are generally viewed asless easily reversed and therefore more credible than non-legal pledges.
Treaties can take time to negotiate, but, as with national laws, they are
more predictable, robust, and reliable than strategies, political declarations,or voluntary frameworks.
For international cooperation problems, especially where negative
externalities are involved, a high level of commitment from States is usuallyneeded, which calls for the development of a legally binding instrument. For
most States, the fact that an agreement is legally binding means it must be
approved by the legislative branch of government (parliaments). This not
only makes the process more public, more democratic, and less vulnerable
to changes in the political leadership (executive branch), it is also anadvantage during the treaty’s implementation phase, which is likely torequire new national laws to be developed. In most countries, this process
will involve the same parliaments.
States must make credible, durable, and robust commitments to tackle thetransboundary problem of plastic pollution. This can only realistically beachieved through a legally binding instrument.

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Bad examples:
GPA, NYDF

9© Shutterstock / John Cuyos / WWF

The rules, standards and requirements included in the new treaty
should be specific and unambiguous, and they should be applicable
to all States parties. The treaty should set a high common standard ofaction.

A key purpose of any multilateral treaty is to set a common standard ofaction that, if faithfully implemented by a critical mass of States, will
effectively address the issue in question. This way, successful treaties
produce shared expectations about principles, norms, rules, and decisionmaking procedures, and about the change in human behaviour needed toresolve the issue of concern. The identification of these rules—thiscommon standard of action—will be one of the key challenges in thenegotiations on a new treaty on plastic pollution. Precisely what should thetreaty require States to do—or refrain from doing?
In their efforts to identify clear and effective global rules, Statesshould consider the full range of possible regulatory measures,
throughout the plastic life cycle—from prohibitions on the production, use
and/or sale of plastic products to technical requirements for recycling andwaste management—and they should prioritize those regulatory measureswith the highest expected effect on reducing the negative impact oftransboundary plastic pollution. With a view to minimizing regulatorycomplexity, States should also consider structuring the policy measures
into subcategories based on information about use patterns, leakage risk orother relevant parameters. This could mean, for instance, developing
detailed requirements aimed at reducing the discharge of products such as
single-use plastics and fishing gear, as these are known to have a high riskof leakage and a significant negative impact on biodiversity.

Good examples:
VCPOL/Montreal,
Basel, MARPOL
Annex I, BWC.

The rules, standards and policy measures included in the treaty
should be applicable to all States parties, as a common standard ofaction. They should be unqualified, measurable, enforceable and, where
relevant, have clear deadlines. And they should be designed using the best
available techniques and best environmental practices. The actions
required by each State party should be ambitious, but also achievable, andthey should not go beyond what is required to reach the treaty’s objective.

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In general, it is better to adopt a treaty with a narrow thematic scope andrealistic objectives than a broad-ranging aspirational treaty with lofty visions
that are poorly defined. Treaties are meant to codify norms and rules, not toserve as platforms for expression of vague political commitments. For
States parties, there should be no doubt as to what is required of them.
The use of deliberate ambiguity, non-binding provisions and qualified
formulations should be avoided. If the treaty text does not commit theStates parties to a clear common standard of action, the gap between theactions taken (or declared) and the actions needed to solve the problem will
most likely continue to grow. It is better to adopt a limited number of strict
and enforceable global standards and rules than to agree on a broad rangeof loose and unverifiable commitments and voluntary national contributions.
The new treaty’s core provisions should legally commit States to comply
with a common set of specific and proportional rules. Common, to avoid
perceptions of unfairness and provide a basis for mutual accountability.
Specific and proportional, to avoid ambiguity, ease implementation,
promote efficiency, and facilitate reporting, monitoring, verification andenforcement. In sum, the core provisions should, if faithfully implemented,
provide a credible solution to the problem of plastic pollution.

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Bad examples:
UNFCCC/Paris
Agreement, CBD,UNCCD, FCTC.

12© Shutterstock / Aqua Images / WWF-Peru

The new treaty should set up a mechanism for monitoring progressand evaluating efforts. It should also specify procedures that allow
the regime to be gradually strengthened over time.

Some global problems have relatively simple solutions. Plastic
pollution, however, is a complex issue to regulate, which is illustrated by thefact that no single country on the planet has managed to eliminate it
entirely. For complex problems, where there is scientific uncertainty about
causes and effects, a lack of viable alternatives, and limited knowledge
about the long-term effectiveness and cost-efficiency of policy measures, astart-then-strengthen approach might be required. Concretely, this may, forinstance, lead to the creation of a framework convention with protocols.

Good examples:
VCPOL/Montreal,
MARPOL, CLRTAP

Good examples:
CBD, CITES, CMS,
Ramsar, UNCCD,
ICRW, UNFCCC(IPCC)

There are many examples of treaties that have started off with arelatively modest framework, and then gradually strengthened the common
standard of action. For some regimes, this has taken time (e.g., MARPOL),
while other regimes (e.g., VCPOL/Montreal) have managed to do so withimpressive speed. There are three keys to making this approach a success:Bad examples:
UNFCCC, CBD,UNCCD, FCTC.

First, the treaty should set up a system for monitoring progress andevaluating efforts. This typically means national reporting requirements,
some sort of international monitoring system, and conferences to review
the implementation of the treaty. More comprehensive stocktaking
exercises could also be considered, such as the 5-yearly “global stocktake”
process established by the parties to the Paris Agreement.
Second, the regime should enable parties to proactively develop new
knowledge about the causes and effects of plastic pollution, and to use
this to inform policy development. This could be achieved by establishing
one or more dedicated scientific bodies. A mechanism for promoting
technical innovation and the development of new and more cost-efficient
response options could also be considered.

Good example:
VCPOL/Montreal,
MARPOL, Basel,
Stockholm,
Minamata.

Third, the new treaty should have provisions that specify how theoriginal agreement can be amended (tightening control measures,shortening timetables, adding new substances in annexes) and how
additional instruments can be adopted (protocols, annexes, appendices).
The key to preventing gridlock and allowing the regime to be graduallystrengthened over time is to avoid a formal consensus requirement.

Bad example:
CCW

The decision-making threshold for strengthening the treaty should reflect
the initial entry-into-force requirement of the agreement and would ideallybe structured as a ratchet mechanism, whereby strengthening is easierthan weakening. If attempts at expanding and strengthening the regime in
the future can be blocked by a handful of disinclined States, the treaty risks
ending up as an obstacle to—rather than a vehicle for—change.

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© Anatoly Kochnev

The new treaty should provide a robust structure for promoting
participation and compliance, and for supporting States in theirimplementation of the treaty’s core provisions.

A high common standard of action will only produce environmental
benefits if it is faithfully implemented. International obligations must be
incorporated into domestic legislation and translated into the required
behavioural change (be it as individuals or as representatives of a company
or an organization). For multilateral treaties, this is a two-step process.
First, States must agree to be bound by the new treaty, which is done
through a process of signature and ratification or accession. When a certain
number of States consent to being bound by the treaty, it enters into force
as an instrument of international law. It will then be binding for the parties tothe agreement. If well designed, the entry-into-force threshold will serve asa tipping point: once a certain number of States have joined, it will be
increasingly disadvantageous to remain outside the regime. This would
push the treaty steadily towards universal participation.
The second step is implementation and compliance. Even if a highnumber of States decides to participate, there is no guarantee that thecommon standard of action will be implemented in practice. For various
reasons, and despite the principle of pacta sunt servanda (agreements
must be kept), States are often unwilling and/or unable to comply with thelegal obligations they have undertaken. That is why treaties, to be effective,
must contain a strong structure for promoting, supporting, and incentivizing
implementation and compliance. Since the international system does nothave a global executive branch with law enforcement powers, thecompliance system must be embedded into the treaty itself, for instance inthe form of trade restrictions or certification procedures.

Good examples:
VCPOL/Montreal,
Basel, MARPOL
Annex I, Minamata.

Several factors determine the prospects for participation andcompliance in treaties. Most importantly, States must be provided withstrong incentives to join. The cost of not participating (‘free riding’) should,
over time, be higher than the cost of participating and complying with thetreaty. In short, the treaty should deliver net long-term benefits to its parties,
making participation the rational course of action. This does not mean thata treaty must be profitable for all parties—for international environmental
agreements that is rarely the case—but it means that the cost of joining theregime and complying with the common standard of action must be a lower
than the cost of not doing so. To achieve this, it will be important to makesure that compliance can be verified, and, if necessary, enforced. This inturn underscores the importance of making the core provisions specific,
unambiguous and, where relevant, measurable. It also helps if the impact

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Bad examples:
UNFCCC/Paris
Agreement, CBD,UNCCD, FCTC.

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of the treaty can be monitored, for instance in the form of reduced leakage
rates of plastic into the ocean.
The prospects for faithful implementation will also improve if theregulatory scope of the agreement is perceived as legitimate by the States
parties. Self-determination and national sovereignty remain key principlesof the international community. A treaty aiming to tackle issues that States
believe are more appropriately dealt with on a national level, may beperceived to infringe on those principles. It is easier to generate broad
support for a treaty if the issue the treaty seeks to address has clear
transboundary causes or effects, or if the treaty generates benefits thatwould not have been possible to obtain without international cooperation.
For plastic pollution, this suggests that a primary focus should be placed on
the transboundary properties of the problem.
A focus on transboundary plastic pollution does not mean that a newtreaty’s core provisions will be implemented exclusively through interactions
between States. The plastic in the world’s oceans has, at one point, founditself within the jurisdiction of a State. A key purpose of a new treaty would
be to prevent this plastic from becoming transboundary plastic pollution.
And, of course, any piece of plastic litter could potentially end up in theocean, or in another country. It could therefore be argued that the risk ofleakage makes all plastic pollution a transboundary concern.
The extent to which States parties prioritize implementation of thetreaty’s obligations is likely to improve if each party can be confident thatthe others carry their fair share of the burden. This calls for transparency,
reporting and information sharing. Combined with specific, measurable, andtime-bound national obligations, this should produce a sense ofaccountability, which is key to the success of the treaty.
A sense of fairness is also central to the long-term viability of theregime. In general, it is therefore better to adopt a treaty that is balanced,
just and equitable than to adopt a treaty pushed through by the mostpowerful States. If an international order or framework is perceived as
unjust, it will eventually be challenged. Ideally, the treaty should contain amix of measures that, over time, provide positive incentives for all States toparticipate, and that minimizes long-term grievances.
Finally, accountability must also be coupled with implementation
support. On aggregate, the international community will be able to do more
to tackle the problem if resources are distributed in a way that maximizes
cost-efficiency and supports low-income States parties in their efforts toimplement their obligations. For most environmental treaties, this means
setting up a dedicated and well-resourced financial mechanism, possibly
combined with a system for transfer of technology and knowledge.
Similarly, a policy toolkit or clearing-house mechanism to promote sharingof best-practices could also serve to catalyse overall implementation of thetreaty’s obligations.

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18© Fritz Pölking / WWF

The new treaty should provide a credible roadmap to the long-termgoal of plastic free oceans. Negotiators should not allow the overalllevel of ambition to be determined by the least interested States.

An effective response to plastic pollution will require significant changes
in the policies and practices of all States. If no action is taken, the amountof plastic ending up in the ocean each year could triple by 2060, withdevastating consequences for nature and people. Already today, plastic
waste is choking our planet—polluting the air, water, and soil that people
and nature need to survive. The task ahead is considerable, and the levelof ambition contained in a new treaty must reflect that.
A treaty’s overall ambition level is not easily defined: it is a function of
all its constituent elements, and how these interact. A treaty can have ahighly ambitious long-term goal but lack the tools and mechanisms toachieve it. It can contain specific and proportional core provisions but lackthe means to promote participation and compliance. Or it can have all theright elements but get stuck in limbo because of unrealistic entry-into-force
requirements. In sum, the overall ambition level is an indication of how far
States are willing to go—of how much political and financial capital they arewilling to invest—to achieve a collective goal.
It might seem a waste of words to point out that a new treaty on
plastic pollution should be ambitious. But sadly, the history ofenvironmental treaty making suggests that ambition is something that mustbe fought for and protected throughout the negotiation process. Too often,
the aspirations and aims of the most progressive States end up being
sacrificed in the name of compromise. This points to one of the key risks
when it comes to ensuring that the new treaty is ambitious: consensus
decision-making.

In multilateral treaty making processes, consensus is something to
strive for, but it must not be seen as a formal procedural requirement.
When any participating State can veto any proposal, the best you can hopefor is a consolidation of status quo. This is also why the standard decisionmaking rule for the adoption of treaties at international conferences is by a
two-thirds majority vote (VCLT, Article 9(2)). It is also why global treaties do

19not require ratification or accession by all UN Member States to enter into
force.

Good examples:
Rotterdam,
Stockholm,
Minamata.

The standard practice when negotiating new international
environmental agreements is to allow for the option of voting. The
rules of procedure for the negotiations on the Rotterdam Convention, theStockholm Convention and the Minamata Convention all specify that every
effort should be made to reach consensus, but that decisions on substancecould, if consensus could not be reached, be taken by two-thirds majority
vote. The reason for this is clear: majority decision-making usually
produces better results than consensus or unanimity. In the long run,moreover, it is usually easier to increase participation than to change thetext of the treaty. It is therefore better to adopt an ambitious treaty with acritical mass of States on board than to accept a weak treaty by consensus.

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Bad examples:
ATT

The broad and growing support for the start of negotiations on a newtreaty on marine plastic pollution is a beacon of hope for marine
wildlife and coastal communities around the world. It provides anunprecedented opportunity for the international community to turn the tideon plastic pollution. The call for a new treaty is backed by a large number ofcivil society organisations, academic experts, businesses and concerned
individuals.
We have no time to waste. The complexity of the issue of plastic pollution,
combined with a culture of consensus decision-making in multilateralgovernance, entails a risk that the negotiations will fail to deliver an
effective global response to plastic pollution. This risk needs to beaddressed from the very beginning. As the process towards a new plastic
pollution treaty is about to enter its most crucial phase, prospective
negotiators should do what they can to avoid repeating past mistakes, andto draw the most relevant lessons from past successes.
If done right, the new treaty can become a vehicle for positive globalchange, as the Montreal Protocol was for the protection of the ozone layer.
The new treaty can be the tool that turns the vision of a plastic free ocean
into a realistic and achievable objective—the kernel in the international
community’s efforts to combat this urgent environmental problem. By actingwith courage, conviction and determination, negotiators of the new treaty
can set a new standard for multilateral environmental governance—astandard attuned to the pressing threats to the sustainability and diversity oflife on earth.
WWF has five key recommendations:
1. To make sure States’ commitments to tackle the problem are anchored at
the highest possible political level, the new global agreement on plastic
pollution should be legally binding.
2. The rules, standards and requirements included in the new treaty shouldbe specific and proportional, and they should be applicable to all States
parties. The treaty should set a high common standard of action.
3. The new treaty should set up a mechanism for monitoring progress andevaluating efforts. It should also specify procedures that allow the regime
to be gradually strengthened over time.
4. The new treaty should provide a robust structure for promoting
participation and compliance, and for supporting States in theirimplementation of the treaty’s core provisions.
5. The new treaty should provide a credible roadmap to the long-term goalof plastic free oceans. Negotiators should not allow the overall level ofambition to be determined by the least interested States.

21BaselBasel Convention on the Control of Transboundary
Movements of Hazardous Wastes and their Disposal

BWC

Biological Weapons Convention

CBD

Convention on Biological Diversity

CCW

Convention on Certain Conventional Weapons

CITES

Convention on International Trade in Endangered Speciesof Wild Fauna and Flora

CLRTAP

Convention on Long-range Transboundary Air Pollution

FCTC

WHO Framework Convention on Tobacco Control

GPA

Global Programme of Action for the Protection of the
Marine Environment from Land-based Activities

ICRW

International Convention for the Regulation of Whaling

IPCC

Intergovernmental Panel on Climate Change

MARPOLInternational Convention for the Prevention of Pollution
from Ships

Minamata

Minamata Convention on Mercury

Montreal

The Montreal Protocol on Substances that Deplete the
Ozone Layer (supplementary to VCPOL)NYDF

New York Declaration on Forests

Paris Agreement

Supplementary agreement to the UNFCCC

Rotterdam

Rotterdam Convention on the Prior Informed Consent
Procedure for Certain Hazardous Chemicals andPesticides in International Trade

Stockholm

Stockholm Convention on Persistent Organic Pollutants

UNCCD

United Nations Convention to Combat Desertification

UNCLOS

United Nations Convention on the Law of the Sea

UNEA

United Nations Environment Assembly

UNFCCC

United Nations Framework Convention on Climate Change

VCPOL

Vienna Convention for the Protection of the Ozone Layer

22© Jürgen Freund / WWF© 1986 Panda symbol WWF – World Wide Fund for Nature (Formerly World Wildlife Fund)® “WWF” is a WWF
Registered Trademark. WWF International, Rue Mauverney 28, 1196 Gland, Switzerland. Tel. +41 22 364 9111.
Fax. +41 22 364 0332.

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