UN members are preparing the first draft of an international treaty to address the growing scourge of plastic pollution on land and at sea. In initial negotiations things have moved at pace. 

The plastic problem is cross-border, not only due to the transport of waste plastics on ocean currents or through exports of plastic waste for recycling overseas, but also due to the global trade in products containing plastic and the sourcing of the raw material, oil, from around the globe. If the issues this poses are only regulated in some jurisdictions, businesses may seek to move their operations to other countries with a more lenient regulatory regime. 

By contrast, a widely adopted treaty has the potential to create a level playing field for the signatory countries and may over time become the expected standard for all. That said, treaty provisions will in several countries only impose binding obligations on private entities once they have been implemented into domestic legislation.  In order to be effective, the treaty will therefore require individual signatory states to take action at home to require and enable proactive enforcement by their national regulators.

However, even if obligations under international treaties don’t make it into domestic law (or do but they aren’t properly enforced) organisations may nevertheless want to press ahead in collaboration with others in their industry to achieve the treaty’s aims. How to do this whilst not falling foul of competition (or anti-trust) provisions is a thorny issue. 

The European Commission has recently agreed guidelines on how EU competition rules banning cartels apply to so-called ‘sustainability agreements’ between competitors in the same marketplace. The guidance says that where the purpose of such agreements is to comply with sufficiently precise requirements of  a legally binding international treaty, they are unlikely to raise competition concerns. So, concluding the UN plastics treaty could allow companies more space to work together to proactively tackle plastic pollution, even where governments are slow to implement it. 

All the more important, therefore, to ensure that the final version of the plastics treaty text contains specific obligations and is not unduly watered down through the course of the negotiation process. The UN drafters may want to bear this in mind in the ‘zero sum’ draft that they are now preparing.

Reed Smith's London environmental Counsel, Julie Vaughan, has commented in the article above authored by Karolin Schaps and published on the International Bar Association’s website.