At the United Nations Environmental Assembly in March 2022, nearly 200 governments agreed to start creating a legally binding Global Plastics Treaty to stop plastic pollution. Two years later, we are nowhere near the ambition to solve plastic pollution across its lifecycle.
The fourth session of the Intergovernmental Negotiating Committee (INC4) recently took place in Ottawa, Canada. INCs are the multilateral platforms where a draft of the prospective instrument is being developed. INC4 concluded with disappointing results. Influenced by various countries protective of their respective plastic industries and industry lobbyists, we concluded the meeting with a weak draft.
In this context, we want to explore whether government statements during negotiations, in past and future INCs, constitute administrative actions with legal consequences. Could we, as citizens, take administrative actions against government delegations from Southeast Asia and their advisers as they disregard human rights, including the right to a healthy environment or public interest as enshrined in international and national laws?
Political Statement as an Administrative Action
Actions taken by a public administrative body, including a country delegation, are guided by the General Principles of Good Governance, which serve as a benchmark to ensure that government officials exercise their authority responsibly.
However, when government officials deviate from these principles, they may engage in maladministration. Typically, countries have mechanisms in place to address instances of maladministration. This can take the form of internal objections in which the public can object to superior officials who commit maladministration. They can then raise objections with the ombudsman institution.
As an example, Indonesia’s administrative law framework, specifically based on the Law No. 30 Year 2014, provides an obligation for each Indonesian public official’s actions to adhere to the statutory provision and good governance principles. This regulation stipulates the provisions regarding complaint or objection mechanisms for the citizen in cases where public officials’ actions violate the statutory provision and/or the good governance principle.
When it comes to negotiating multinational environmental agreements (MEAs), such as the ongoing discussions on the Global Plastics Treaty, public officials engage in actions that include the preparation of country statements, draft agreements, and participation in negotiations. However, there are instances of maladministration even in the negotiation preparation phase, particularly in the drafting of negotiating texts or delegation statements, which are conducted behind closed doors or without meaningful participation from relevant stakeholders, such as impacted communities.
Potential Cases of Maladministration
Plastics are made from polymers derived from fossil fuels like oil and petroleum.
In the Plastics Treaty negotiations, lack of inclusiveness and transparency as part of good governance – such as basing delegation statements on the preferences of specific interest groups like petrochemical industries – could be deemed maladministration. Such was the case in INC4, which was attended by 196 fossil fuel and chemical industry lobbyists, some of whom were part of the country delegations either as industry or government delegates.
Research by the Organization for Economic Cooperation and Development notes that upstream measures – measures that put a cap on the production or supply of virgin plastic polymers – can greatly reduce total plastic waste volumes, thereby decreasing the costs of collection, sorting, and final treatment. Downstream measures – waste management, treatment, and disposal – require more resources for waste collection, and thus management will impact the local public budgets which could be spent on improving other public services.
Meanwhile, scientifically and globally agreed-upon restrictions on the supply of primary plastic polymers will be necessary to meet with the Paris Agreement goals. Climate models tell us that cutting plastic production by 75 percent by 2050 will be required to keep temperature rise to 1.5 Celsius and prevent the most dire impacts of a rapidly warming planet.
Unfortunately, the industry lobbyists continue to push for weaker language, particularly on the need for stronger upstream measures. Choosing an option that favors a few business interests while disregarding the public interest – like the need to prioritize a healthy and livable environment that is increasingly affected by climate change – may lead to legal consequences for the involved delegations.
States may also be committing maladministration for failing to address chemicals of concern.
Plastics pose distinct risks to human health at every stage of their lifecycle due to their hazardous chemical makeup. A report by the United Nations Environmental Program (UNEP) stated that there are over 13,000 chemicals related to plastics. About 3,200 chemicals are deemed chemicals of concern, having one or more dangerous properties, such as chemicals that are persistent and mobile in the environment, are bioaccumulative, influence the hormone system, reduce fertility, damage the nervous system, and/or are carcinogenic.
These dangerous chemicals can be released to the environment throughout the full lifecycle of plastics – not only when the plastics are made, but also when plastics are used, consumed, transported, and become waste.
Member states should immediately address and eliminate the chemicals and polymers of concern in order to safeguard public health. A good starting point can be through the identification of those dangerous groups of chemicals already mentioned based on existing scientific evidence by the UNEP and other agreements such as the Stockholm Convention. Access to information for these chemicals and polymers of concern relating to plastics must be ensured along the plastic value chain as well.
It is also important to highlight the significance of the precautionary principle and principle of prevention when we consider the chemicals and polymers relating to plastic. It is too late to have a meaningful impact if chemicals and polymers relating to plastic are only managed once they become waste. This is what the Global Plastics Treaty aims to address – the elimination of chemicals and polymers of concern from the upstream of plastic production and to fill the gaps that other MEAs such as the Basel Convention have left.
There is also a risk of member states falling into a trap of substituting hazardous chemicals and polymers with other unknown chemicals and polymers. This is where the application of the precautionary principle is useful to ensure that “no data, no market” is translated in the Plastics Treaty draft, to address chemicals and polymers of concern.
When states disregard human health and allow the uncertainty of chemical harm, which could potentially breach environmental laws and principles of good governance, this could be categorized as another form of maladministration.
Recommendations for Comprehensive Action
While states have different opinions and priorities, is it clear that there is an overwhelming global consensus that we cannot continue with business-as-usual when it comes to the plastics crisis. The world must reduce plastic production to arrest plastic pollution as well as stop biodiversity loss and limit global warming to 1.5 C. If a Southeast Asian government chooses to support a treaty with no strong provisions on the matters of primary plastic polymers, chemicals, and polymers of concern, they contradict the very mandate of the development of the Global Plastics Treaty.
Government officials, acting as a country’s delegation, bear a legal responsibility when issuing or withholding statements. Therefore, the public, particularly impacted communities, could object legally using their respective administrative law to the state’s actions resulting from options chosen during INC negotiations if they potentially breach environmental and health standards. Consequently, it is indispensable for member states, represented by government officials, to prioritize public input over the interests of industrial lobbyists.