1. INTRODUCTION
Plastics wastes are framed as one of the most significant environmental problems facing humanity today, alongside and closely related to catastrophic biodiversity loss and climate change. Plastics are made of polymers and additives. Polymers can be synthesized from fossil fuels (petroleum or natural gas) as well as from renewable resources, or are natural polymers such as rubber. By and large, they do not biodegrade.Footnote 1 Many plastics are hazardous: they either contain chemical additives, including flame retardants (such as polybrominated diphenyl ethers) and plasticizers (such as phthalates), or they absorb hazardous chemicals.Footnote 2 As a material, plastics have become locked into systems of production and consumption with production projected to triple by 2050.Footnote 3
Various options notionally exist to dispose of discarded plastics. Yet few facilities can dispose of plastics without causing significant harm to the environment and often human health, as illustrated in the cases of disposal by landfill and incineration.Footnote 4 Recycling is often presented as the ideal option, especially by corporate actors. However, plastics recycling is resource-intensive and very significantly limited by costs and complexity (as a result of, among other things, the diverse chemicals used in plastics production).Footnote 5 Nor can plastics be recycled indefinitely.Footnote 6 Only an estimated 9% of plastics worldwide have been recycled.Footnote 7 Much of the harm that flows from plastics disposal falls on marginalized social groups.Footnote 8 Specifically, plastics that have become ‘waste’ form part of the well-established global dynamic of waste generated in the global north being dumped in the global south.Footnote 9
Existing scholarship on law and plastics at the transnational level has mapped the fragmented multilateral environmental agreements dealing with plastics, often with a focus on plastics in marine environments. Broadly, this body of work has developed treaty design ideas to overcome the problem of fragmented multilateral environmental laws.Footnote 10 Perhaps because of the focus on marine environments, suggestions for a new treaty have focused mostly on reducing the impact of plastics pollution, developing extended producer responsibility schemes, improving waste management (including the transfer of finance and technologies to low-income communities), and establishing national self-determined targets. Related legal studiesFootnote 11 have drawn on other social science disciplines and critically analyzed the main conceptual frameworks that underlie waste law.Footnote 12 Recent legal scholarship has also examined how law can facilitate a circular economy approach to plastics at the domestic and regional levels.Footnote 13
This article extends these bodies of work. It categorizes and evaluates how plastics are conceptualized across regulatory regimes and develops a more comprehensive map of the transnational regulatory governance for plastics than that which appears in existing literature. In doing so, the article considers how understandings of plastics reflected in regulatory regimes affect the production and consumption of plastics. Based on doctrinal analysis, and informed by a policy-oriented approach and Bacchi's ‘What's the problem represented to be?’ approach,Footnote 14 this article identifies and develops the following conceptual frameworks for plastics within transnational regulation:
(a) plastics as waste to be managed;
(b) plastics as a material to be prevented;
(c) plastics as a good and as waste to be traded freely; and
(d) plastics as inputs/outputs in production and consumption systems.
This article identifies three significant and related deficiencies in the transnational regulation of plastics which, we suggest, are subjects for future scholarship, advocacy, and reform. Firstly, the transnational regulation of plastics fails to frame plastics in the language of human rights or justice, despite the considerable relevance of these concepts to the regulation of plastics and the global flows of plastics. Secondly, and relatedly, the transnational regulation of plastics has focused on plastics pollution and waste, and not as much on the prevention of plastics, which represents a deeper challenge to prevailing systems of plastics production and consumption. Finally, law is not only a solution to the problem of plastics; it has played a significant role in reflecting and reinforcing systems of plastics production and consumption. Relatively weak provisions in multilateral environmental treaties and the absence of adequate measures to prevent plastics production in quantitative terms, combined with the permitted levels of production and consumption under international economic law, expose law as profoundly complicit in the unequal harm from plastics. This article concludes by identifying key areas for further scholarship, advocacy, and reform.
2. PLASTICS WASTE AS A WASTE MANAGEMENT ISSUE
This section unpacks how law, policy and related discourses have largely framed plastics as a waste management issue. Under this approach, enshrined in law and policy, plastics are treated as a problem that can be addressed once the material is discarded. As this section explains, this approach to plastics regulation has significantly enabled unequal flows of plastics waste, leading to macro-level environmental injustices. Furthermore, the waste management focus ‘locks out’ more holistic framings and responses to plastics that may better protect poor and marginalized groups and reduce unintended consequences.
2.1. Conceptualization of Waste and Waste Management
Waste as a ‘problem’, and as a source of pollution, has gained prominence in legal discourse since the 1960s, along with expansions in production and consumption in which plastics played a significant role.Footnote 15 Diverse and broadly similar conceptualizations of ‘waste’ and ‘waste management’ have informed, and continue to inform, law and policy responses to plastics. While there is no common definition of ‘waste’ in international law, Article 2(1) of the Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal (Basel Convention)Footnote 16 provides an international definition of waste that broadly aligns with other transnational regulatory instruments.Footnote 17 Pursuant to this definition, ‘wastes’ are substances or objects that are ‘disposed of’, or intended to be disposed of, or required to be disposed of under national law.
In ordinary English ‘to dispose of’ means ‘to throw away’.Footnote 18 In law it can have the same meaning, or it can mean to transfer a collection of rights in something of value.Footnote 19 Drawing on this, plastics waste in law is essentially plastic (as a substance), or plastic objects which actors across the formal supply chain are no longer using, and do not intend to use in their current form, within systems of production and consumption. Equally, it could be described within international law as a commodity or as pollution. It is also worth noting that actors within the informal waste sector, which operates largely outside the law, ascribe meanings to, and revalue, objects that the law may consider as waste.Footnote 20
During the 1960s and 1970s, waste management and, especially for plastics, ‘integrated solid waste management’ arose as the predominant construction of the solution to waste and waste-related pollution.Footnote 21 Likewise, within law and policy generally and the Basel Convention in particular, waste management is framed as the ‘solution’ for waste and waste-related pollution. Waste management focuses on creating and improving technical, infrastructural and regulatory systems for gathering, transporting, and sorting waste into either landfill, recycling, recovery or reuse streams, as well as the care of landfill and other disposal sites.Footnote 22 The role of law in waste management ideally is to construct financial and planning arrangements to incentivize improvement and to ensure occupational health and safety. Within waste management the causes of waste are multiple, but tend to centre on increasing consumption by urban populations and ‘advancements’ in manufacturing, leading to the production of materials – namely, plastics which include vinyl, ethylene and acrylic – which are more difficult to remove.Footnote 23
During the 1990s, waste management and related concepts, such as integrated solid waste management, were reconceptualized with more emphasis on, firstly, the then emerging concept of sustainable development and, secondly, the waste management hierarchy.Footnote 24 Primarily, the sustainability turn in waste management incorporates the same focus on technical aspects. However, it also draws on principles connected with sustainable development, such as public participation in environmental decision making and an emphasis on long-term rather than short-term gains.Footnote 25
The concept of a waste management hierarchy emerged with the first iteration of integrated solid waste management, but it was only in the late 1980s and 1990s, which brought renewed scrutiny of waste and its reconceptualization within sustainable development, that the waste management hierarchy was widely adopted within law and policy.Footnote 26 Essentially, it ranks the various mix of waste management options and actions available to regulators from the most optimal/preferred to the least optimal/preferred resource use.Footnote 27
At the bottom of the hierarchy is ‘waste disposal’: the release of the material into landfills or incinerators. ‘Waste recovery’ ranks higher than disposal. In the context of plastics, this refers to processes that convert plastics into energy and chemicals. Recycling plastics, according to the hierarchy, is generally preferred to both disposal and recovery, and encompasses processes whereby plastics can be extracted and reused. Reuse of plastics ranks above recycling because reuse, unlike recycling, does not involve intensive processing. Finally, the most preferred outcome for waste law and policy is not a waste stream at all, but rather ‘waste minimization’, also referred to as ‘waste prevention’.
More recently, waste management has been conceptualized within frameworks that focus generally on flows of materials within systems, and notably within a circular economy approach. Some of these conceptualizations refer to conventional understandings of waste management, while others significantly reposition waste management, representing a paradigm shift.Footnote 28 These particular understandings will be discussed in more depth in Section 5.
2.2. Transnational Regulatory Responses based on Waste Management and Waste Mismanagement
Several transnational regulatory responses fall squarely within a waste management approach to dealing with plastics. For instance, the Convention on Persistent Organic Pollutants (Stockholm Convention), which focuses on a reduction in the use of persistent organic pollutants (POPs), emphasizes ‘environmentally sound management of waste’.Footnote 29 Various regulatory responses to plastics in the marine environment, in turn, are concerned with waste leakage from land sources and direct plastic dumping into oceans.Footnote 30
The Basel Convention is the main transnational instrument focused on managing waste, especially hazardous waste, and its amendments to Annexes II, VIII and IX in January 2021 extend its application to non-hazardous forms of plastic.Footnote 31 The Convention creates obligations for states to control trade in plastics waste more effectively and enables ‘environmentally sound management’ of hazardous and non-hazardous plastics waste. It affirms the rights of states to prohibit the import of plastics, whether hazardous or non-hazardous,Footnote 32 and creates obligations on state parties not to export plastics to jurisdictions where the import of such plastics would be a violation of domestic law (unless otherwise consented to by the importing state).Footnote 33 The Convention further obligates states to create particular procedural requirements around the transfer of plastics to ensure plastics waste is being exported to regions that can recycle, recover, or otherwise dispose of plastics in an ‘environmentally sound and efficient manner’.Footnote 34
It is unfortunate that diverse types of plastic were neither explicitly included in the Basel Convention from its inceptionFootnote 35 nor covered in earlier amendments, even though issues with plastics have been well documented since the 1970s and, therefore, were known significantly before the adoption of the Basel Convention.Footnote 36 By not regulating the transferal of plastics between countries, the Basel Convention at best failed to address and at worst enabled the transferal of plastics waste to countries with less developed regulatory and infrastructure framework for waste (discussed further in Section 2.3). The emphasis on waste management in the Basel Convention is also difficult to justify or apply with regard to plastics. As discussed in the Introduction, most plastics are highly difficult to dispose of;Footnote 37 significant technical and practical barriers remain to the disposal of plastics by other means and, even if it is recycled, it cannot be recycled indefinitely like other materials.Footnote 38 The focus of the Basel Convention on waste transferal and waste management largely reinforces the notion that waste can be ‘managed’, without meaningfully addressing the fact that with plastics, in particular, management options are limited.
2.3. Plastics Waste (Mis)Management
No legal instrument in the realm of the international and transnational regulation of plastics frames the issue in the language of human rights or justice. The Basel Convention problematizes unequal impacts of transboundary plastics waste as if they result entirely from regulatory and technical shortcomings.Footnote 39 As a consequence of this framing, any solution assumes the shape of improved waste management through technical and regulatory means.
Beyond the legal framing of waste management, plastics generally have not been singled out as an environmental injustice or human rights issue by activists or scholars. Of course, waste more broadly has been discussed as an environmental justice and human rights issue.Footnote 40 Yet the global flows of plastics waste, and the unique difficulties and harm associated with its disposal, indicate the need for targeted responses, and different and novel legal framings.Footnote 41 The frameworks of environmental justice and human rights provide alternate ways of understanding plastics waste as a problem. This section briefly unpacks environmental justice framings of plastics waste compared with waste management framings, while Section 3.4 focuses on rights-based understandings.
From an environmental justice perspective, it is highly relevant that most production and consumption of plastics occurs in countries in the global north, but most plastics waste is exported to China and lower-income developing countries with comparatively unregulated, or unenforced, waste management practices.Footnote 42 Since 1992 China has imported 45% of global plastics waste, most of which has been buried in Chinese landfill.Footnote 43 Collectively, G7 countries accounted for approximately half of all plastics waste exports to China in 2016, which earned USD 0.9 billion from its imports.Footnote 44 Exports of plastics waste in 2017 were estimated at USD 4.3 billion, with 71% originating in developed countries, and 75% of plastics waste imports directed to developing countries, 64% of which was to China.Footnote 45 China's plastics recycling industry employs many rural Chinese citizens from lower socio-economic strata. Nevertheless, most plastics seem to have gone into landfill, and the adverse health impacts of plastics waste have disproportionately fallen on rural Chinese citizens, both through the recycling industry and as a result of landfill practices.Footnote 46
China's National Sword policy of 2018, which restricted 24 forms of plastics waste import, destabilized global plastics flows.Footnote 47 Data from the World Trade Organization (WTO) show that in 2019, following China's National Sword Policy, the global trade in plastics waste reduced by 46%.Footnote 48 Although global trade in plastics was significantly disrupted, it appears as if existing supply chains for waste simply re-organized so that plastics waste flows increased to neighbouring countries in the global south.Footnote 49 Marked increases in plastics waste imports have been documented in India, Indonesia, Malaysia, Pakistan, Thailand, Turkey, and Vietnam. It was also estimated that 1,700 Chinese recyclers have been affected by the National Sword policy, with 30 to 40% moving operations transnationally, and up to 1,000 Chinese businesses applying for licences to operate in Thailand.Footnote 50 Hence, the Chinese restrictions on the plastics waste trade resulted in a temporary disruption of trade, but not a long-term disruption to the trend of plastics waste being dumped in the global south.
Countries like Thailand and Vietnam seem to be facing a ‘double burden’ of plastics: while their domestic production and consumption of plastics increase (as in all countries), they are also faced with increasing imports of plastics waste, yet they have fewer resources to address or prevent related health and environmental effects than countries in the global north.Footnote 51
In fact, global plastics production and consumption has increased since 2019, consistent with projections, but also as a result of COVID-19.Footnote 52 Increased usage of single-use plastics for hygienic packaging and personal protective equipment resulted in an estimated 585 million tonnes of plastics waste generated globally in 2020.Footnote 53 Further, researchers are predicting that plastics waste generation will continue to rise following COVID-19 because of a focus on increasing consumption to increase national economic growth and heightened concerns for hygiene.Footnote 54
From an environmental justice perspective, three main reasons explain how countries and communities in the global south became the preferred location for dumping plastics from the global north. These are:
• firstly, stricter environmental regulation and citizen opposition to local waste disposal facilities in the global north combined with unsustainable levels of consumption, which increased the costs of local waste disposal;Footnote 55
• secondly, significantly cheaper waste disposal in the global south caused in part by lower wages, weak environmental and labour regulation, and enforcement and government corruption, which are especially important for plastics given limited containment and recycling options;Footnote 56
• thirdly, the expansion of global and domestic economic structures based on neoliberal capitalism,Footnote 57 as manifestations of neocolonialism,Footnote 58 which fuelled a willingness in the global south to accept hazardous waste shipments.Footnote 59
Environmental justice problematizes how low-income communities and racial and ethnic minorities within countries are disproportionately exposed to toxic and hazardous substances in waste management streams, including those that deal with plastics.Footnote 60 In the United States (US), where environmental justice and waste are especially well studied, almost 80% of incinerators are located in marginalized communities,Footnote 61 and a significant proportion of plastics waste is incinerated.Footnote 62 At the global level most plastics waste is disposed of in landfills and natural environments.Footnote 63 A very large body of work illustrates that landfills, and specifically pollution from landfills, disproportionately affect the health and well-being of marginalized communities, as these communities tend to be located near landfills and work on landfills.Footnote 64 The same groups that are disproportionately exposed to harm from landfills or incinerators tend to have comparatively less access to information about the impacts of pollution from such sources,Footnote 65 less access to legal and political remedies to redress harm as a result of limited rights of public participation in the formulation and implementation of law,Footnote 66 and limited access to structural support for potential claimants.Footnote 67
However, the dominant ‘waste management’ frame ignores these structural inequalities and how they contribute to the unsustainable production and consumption of plastics. Furthermore, the technical and practical limitations of plastics disposal – such as the fact that they degrade slowly, that they are difficult to sort into recycling streams because of intermixing of chemicals, and that they cannot be recycled indefinitely – are sidelined. Rather, by framing plastics waste as a resource that can be managed, international law enables a ‘worldwide displacement and commodification’ of plastics waste that is unaligned with existing technical and practical capabilities for disposing of plastics.Footnote 68
3. PLASTICS WASTE AS A PREVENTABLE MATERIAL
This section explores how waste prevention is approached in transnational law, policy and related discourses, beyond its placement at the top of the waste management hierarchy. Waste prevention requires, to varying degrees, the phasing out of plastics and therefore a significant reorganization of societies. This section makes a case for extending scholarship and activism around plastics prevention. It also shows that existing regulatory responses aligned with prevention are not designed to, and do not, meaningfully consider the normative social dimensions of plastics production and consumption. This leads to responses which do not genuinely prevent plastics and which may exacerbate social inequities.
3.1. Conceptualizing Prevention
Scholars and environmental groups increasingly draw attention to the ways in which waste management reflects a particular framing of waste, and represents particular solutions to waste, which are not necessarily optimal in terms of preventing harm from plastics waste and reducing natural resource use.Footnote 69 Indeed, the mass exportation of plastics waste to China illustrates how many countries continue to rely on end-of-pipe solutions rather than tackle difficult questions around systems of production and consumption. In the law and policy context, Bradshaw summarized this critique as follows:
Framing waste as a waste management problem (what we do with stuff once it becomes waste), rather than a resource management problem (how do we produce and manage resources to prevent them from becoming waste), has led to end-of-pipe approaches which tackle the symptoms, not the causes, of waste, and shift blame to those at the end of the chain (especially consumers).Footnote 70
Consistent with Bradshaw's contribution, the waste management hierarchy contains two different sets of activities that can be in competition with each other: (i) waste management (dealing with existing waste); and (ii) waste prevention (the measures implemented before the resource has become waste to reduce the quantity of waste generated).Footnote 71 Waste management leaves the production-consumption system more or less intact but shapes its outputs, while waste prevention is more challenging for ‘business as usual’, requiring more significant changes to existing patterns of production and consumption.Footnote 72
Waste management without prevention is inadequate as a dominant response to plastics waste. Multiple factors – including the diversity of chemicals used in plastics, the sheer volume of plastics waste, and the lack of demand for it – mean that plastics make up one of the most complex material mixes to recycle.Footnote 73 Further, plastics cannot be recycled indefinitely, and recycling plastics does not necessarily produce a net environmental benefit.Footnote 74 A large body of work examines the ‘rebound effect’ whereby effective and widespread recycling may in fact reduce the costs of plastics, increasing their use relative to other materials.Footnote 75 Reusing products or extending product lifespan does not necessarily result in less demand or ensure net environmental benefits; much depends on the context, external factors (like legislation), the method used to renew or extend product lifespan, and the type of product.Footnote 76 Finally, plastics have already accumulated to levels that contribute to the surpassing of planetary boundaries.Footnote 77 The planetary boundaries framework outlines precautionary boundaries for a number of anthropogenic impacts on critical earth system processes.Footnote 78 The purpose of this framework is to identify environmental conditions under which human society can ‘continue to develop and thrive’ – that is, how much biodiversity loss or climate change, as two examples of planetary boundaries, can occur before human existence is threatened.Footnote 79 Plastics, in particular, have been identified as a substance that is significantly contributing to the surpassing of many such boundaries.Footnote 80 These factors, as well as the use of oil to make most kinds of plastic, mean that end-of-pipe solutions are limited in their ability to make plastics production and consumption sustainable.
Unlike waste management, no common definition exists for waste prevention. Scholars and the Organisation for Economic Co-operation and Development (OECD) have suggested that waste prevention lacks legal and theoretical grounding because it is difficult to measure; it requires a counterfactual evaluation of materials which do not exist but which would have existed if not for preventive measures.Footnote 81 The infrastructure surrounding waste management, and recycling and landfill in particular, also tends to reinforce a focus on dealing with waste once it exists, rather than avoiding its production in the first place.Footnote 82
The European Union (EU) Waste Framework DirectiveFootnote 83 provides one of the few regulatory definitions of ‘waste prevention’ and illustrates a clear intention to separate management from prevention. In requiring that Member States establish waste prevention programmes, Article 3(12) of the Directive defines ‘waste prevention’ as:
[M]easures taken before a substance, material or product has become waste, that reduce: (a) the quantity of waste, including through the re-use … or the extension of the life span of products; (b) the adverse impacts of the generated waste on the environment and human health; or (c) the content of harmful substances in materials and products.
Hence, the Directive draws attention to quantifiably reducing the amount of waste produced and reducing its hazardous content, but it also deals with reducing the adverse impacts of waste, that is, with waste management routes. Even with a clear definition of prevention and operationalizing prevention (i.e., creating interventions that prevent products from being produced only to be wasted), waste remains challenging within existing economic and social structures. This is evident from studies in EU countries, which critically note that waste prevention interventions treat recycling as the main ‘preventative’ option.Footnote 84 The small body of scholarship examining waste prevention interventions more generally shows that regulatory responses have focused on consumption (especially via awareness campaigns) and on product redesign.Footnote 85
A more radical definition of prevention would focus on quantifiably measuring and reducing the amount of primary plastics produced domestically or imported. Interestingly, the Preamble to the Basel Convention conceptualizes waste prevention in a similar way: ‘[T]he most effective way of protecting human health and the environment from the dangers posed by such wastes is the reduction of their generation to a minimum in terms of quantity and/or hazard potential’.Footnote 86
Consistent with this understanding of waste prevention, scholarship on the design of a new plastics treaty has explored how the Paris Agreement,Footnote 87 the Kyoto Protocol,Footnote 88 or the Montreal Protocol on Substances that Deplete the Ozone LayerFootnote 89 could be a model for phasing out plastics.Footnote 90 In particular, these treaties exemplify how a new treaty could be designed around the gradual banning of particular uses of plastics while also mobilizing resources towards waste management. The risk is that, as has been observed in the EU context, combining waste prevention and waste management may allow waste management to dominate, as it entails less disruption to existing systems of plastics production and consumption. More advocacy and scholarship around prevention could help to mitigate this outcome.
Various international environmental law principles also help to conceptualize waste prevention.Footnote 91 The precautionary principle, with its emphasis on pre-empting harm, could be used to support waste prevention.Footnote 92 Similarly, the principle of preventative action in international environmental law identifies the state as being responsible for taking preventative action against pollution.Footnote 93 In the context of waste, however, the prevention principle has largely been conceptualized and applied as requiring due diligence, remedies and pollution mitigation rather than as actually avoiding pollution.Footnote 94 Considerably more scholarship is required to create an evidence base that informs law and policy on defining and measuring waste prevention.
3.2. Transnational Regulatory Responses that Incorporate Waste Prevention
Two international regulatory instruments have substantive provisions about waste prevention. The first is the Stockholm Convention, which (as stated in Section 2.2 above) obligates states to reduce the use of POPs. POPs may feature in the manufacture of plastics, and certain plastics absorb and may become contaminated by POPs. Under the Convention, state parties agreed to prohibit or take other necessary measures to eliminate the production of the specific POPs listed in Annex A. Although plastics are not directly mentioned in Annex A, some of the chemicals commonly used in plastics are, and so the provisions could translate into an obligation to reduce certain kinds of plastic.Footnote 95 It is significant for a multilateral environmental convention to obligate state parties to eliminate particular chemicals from their supply chains. However, the emphasis on particular chemicals substantially limits its applicability to plastics. State parties are at liberty to shift plastics production towards other chemicals, without altering levels of plastic consumption or providing sustainable and equitable means of disposal.
The second such instrument is United Nations (UN) Sustainable Development Goal 12 (SDG 12) which aims to ‘[e]nsure sustainable consumption and production’ and its various targets. In particular, Target 12.5 is relevant to plastics and prevention; it aims, by 2030, to ‘substantially reduce waste generation through prevention, reduction, recycling and reuse’.Footnote 96 Importantly, the inclusion of this goal represents efforts of countries in the global south to influence countries in the global north to address unsustainable consumption, presumably including its higher consumption of plastics.Footnote 97 The indicator for measuring progress on Target 12.5, however, is wholly focused on national recycling rates and the weight (tonnes) of materials recycled.Footnote 98
Another notable target is Target 12.2, which aims for the ‘sustainable management and efficient use of natural resources’ by 2030. Progress towards this goal is measured by ‘material footprint’, which refers broadly to estimates about the amount of fossil fuels and biomass domestically extracted, and the amount imported, as required to meet estimations of domestic demand.Footnote 99 Hence, it is a rather abstract metric which does not provide a direct accounting approach for measuring how much plastic is domestically produced, how much is imported or exported, and how much is consumed; nor does it illustrate how these numbers have changed over time. Progress on SDG 12.2 could, notionally, occur via the prevention of plastics production or consumption; equally, SDG 12.2 could be met without any such prevention at all, as the target does not require a reduction in resource consumption.Footnote 100 Based on similar reasoning, scholars have evaluated SDG 12 in depth and found it to be overly focused on end-of-pipe solutions.Footnote 101
3.3. Transnational Trend towards ‘Single Use’ Plastics Bans and Prevention
Unlike most other materials,Footnote 102 over the last decade plastics have attracted certain legal prohibitions and levies.Footnote 103 These prohibitions and levies, while limited to particular plastics, seem aligned with a more radical interpretation of waste prevention, and have been described collectively as an emergent norm in transnational environmental law.Footnote 104 With over 127 countries enacting legislation to ban particular single-use plastics,Footnote 105 plastics appear to be the one material that has attracted some genuine and transnational waste prevention regulation. Prohibitions and levies on single-use plastic bags in various jurisdictions, for instance, have reduced or eliminated the consumption of the specific kind of single-use plastics focused upon in policy.Footnote 106 Consistent with broader research on ethical consumption habits, preliminary evidence also suggests that levies or bans on particular uses of plastics have the potential to positively affect other types of consumption behaviour and to increase political support for more restrictions on plastics.Footnote 107
Unfortunately, the narrow focus on specific uses of plastics has not, generally, resulted in fewer materials being extracted to be later discarded; nor has it necessarily reduced the overall amount of plastics in circulation. For instance, plastic bag prohibitions can lead to an increase in the use of thicker plastic bags which, depending on the available waste infrastructure, may be harder to recycle, and which require more resources to manufacture.Footnote 108 Hence, narrow prohibitions of particular kinds of plastic or particular plastics uses carry the risk of just shifting plastics production and consumption, rather than preventing the production of new plastics. Even where plastics are substituted with other materials such as paper bags, potentially more raw materials go into producing these substitutes (although, importantly, paper bags do not cause the same levels of harm once they enter waste streams).Footnote 109
Prohibitions and levies on single-use plastics, as a form of waste prevention, also reinforce socio-economic inequalities. Alternatives to single-use plastics, such as bamboo or metal straws, tend to cost more and, in some cases, may not meet the needs of people with disabilities as effectively or safely as single-use plastics do.Footnote 110 As a result of the gendered division of labour, initiatives concerned with sustainability or improving environmental management are likely to increase the workload of women disproportionately to men.Footnote 111 Fines for the use of plastic bags can reinforce economic inequalities, as financial penalties for low-level law breaking have been shown to do.Footnote 112
On a global scale, progress towards eliminating particular plastics or particular uses of plastics could disproportionately disrupt the lives of informal workers in solid waste streams in the global south. These workers live in poverty, and while their livelihoods largely do not provide for an adequate standard of living (or occupational health and safety), the impact on their lives of transitions from plastics raises important human rights concerns.Footnote 113
3.4. Future Directions for Waste Prevention
Because of the technical and practical limitations on plastics disposal, their oil-intensive production process and hazardous potential, prohibitions are an important part of a regulatory mix and should be considered in conjunction with other measures. However, the lessons learned from single-use plastics prohibitions suggest that it is not enough for (plastics) waste prevention to narrowly ban particular uses of plastics. Narrow prohibitions mean that the difficulties of transitioning to new material uses affect particular groups unequally and do not necessarily reduce the burdens that plastics production and consumption place on ecosystems and human health.
Human rights law (a rights-based approach), with its ability to centre human interests and consider multiple effects, provides a useful basis for formulating and evaluating regulatory responses to plastics production and consumption. It provides a framework through which various dimensions can be considered and valued: the harmful effects of plastics on human health; how plastics can contribute to the realization of various human rights as well as other human rights issues such as climate change; and how specific regulatory responses to plastics may adversely affect the realization of human rights. Principles from human rights law, such as non-discrimination and meaningful participation, provide important procedural standards that can, and in some jurisdictions must, further inform legal developments around plastics prevention.Footnote 114
Finally, and importantly, Kirk has conceptualized most directly the form that a treaty for plastics prevention could take, drawing on the Montreal Protocol and the Paris Agreement. While Kirk advances ideas for quantifiably reducing plastics production, she is also careful to emphasize the need to deal with the mass accumulation of plastics in environments, especially in low-income areas.Footnote 115 Future scholarship and advocacy could further develop the links between such waste prevention approaches in law and environmental justice or human rights discourses. Secondly, it could consider expanding treaty-based approaches to intervening in the organization of production, consumption, and economic systems.Footnote 116
4. PLASTICS (AND PLASTICS WASTE) AS A GLOBAL GOOD TO BE TRADED
Within environmental law and policy, plastics are predominantly framed as a problem to be managed. However, the dominant framing of plastics in law and regulation is one which approaches plastics and plastics waste as a good to be traded freely as part of trade and investment liberalization. Although this latter framing has received relatively little attention in the law and social science literature, this section shows that trade liberalization and related laws are part of the structural drivers of plastics use and are therefore complicit in creating and sustaining global inequalities in the distribution of harm from plastics.Footnote 117
4.1. The Intersection of International Trade Law and Plastics
Various WTO Agreements intersect with plastics production, the most important of which are:
• General Agreement on Tariffs and Trade (GATT):Footnote 118 this contains the overarching rules that apply to trade in plastic goods, and the exemptions to these rules which centre on the non-discriminatory treatment of goods. It broadly enables the flow of plastics between countries in the form of plastic resins, plastic goods, and plastics waste.
• Agreement on Technical Barriers to Trade (TBT Agreement):Footnote 119 this seeks to harmonize and regulate ‘technical regulations’, including domestic production of plastics and packaging requirements.Footnote 120 Examples of technical regulations in the context of plastics include laws that require certain kinds of plastic (such as a specific polymer mix) to be used for particular products or that prohibit the use of particular kinds of plastic.
• Agreement on the Application of Sanitary and Phytosanitary Measures (SPS Agreement):Footnote 121 this seeks to harmonize measures which member states may use to stop the spread of diseases and to reduce risks from additives, contaminants and toxins. The SPS Agreement places emphasis on scientific evidence and, in the context of plastics, it applies to measures on food packaging for food safety, restrictions (or bans) on the use of particular types of plastic, or of chemicals used in manufacturing plastics, for human health purposes.
Although the listed treaties contain provisions that states can and do use to restrict trade in order to, for instance, reduce plastics pollution, the general impetus of trade and investment liberalization, and the essentially permissive structure of international economic law, significantly enable increasing production and consumption of plastics and limit the regulatory space available for states to restrict plastics. This dynamic tends to be de-emphasized in WTO discussions regarding the impacts of trade liberalization on plastics; the discourse instead focuses on opportunities.Footnote 122 A further complexity is that trade liberalization under the WTO can be important for allowing or facilitating the transfer of plastic goods such as certain medical devices, which, because of the institutional and technical lock-in to plastics, are important for the immediate realization of an adequate standard of living or for human health.
4.2. Trade and Investment Liberalization as Structural Drivers for Plastics
In theory, trade liberalization has the potential to help countries in reducing plastics production and to improve plastics waste management systems in several ways. Firstly, trade liberalization may increase government revenue (via increased economic growth and incomes), which theoretically can support interventions into plastics production, consumption and waste. Secondly, trade liberalization can enable technology transfers between countries, with the potential to create new materials or improve waste management. Finally, trade and investment liberalization may increase the environmental standards of companies. For instance, domestic prohibitions of particular plastics can influence export companies in other jurisdictions to adopt different materials or otherwise reduce the use of plastics in their products.
Generally, however, increased trade and investment liberalization over the last several decades has enabled, and will continue to perpetuate, unjust and unsustainable plastics production, consumption, and waste.Footnote 123 A recent but growing body of work examines how trade incentivizes and enables the export of plastics waste to countries in the global south, and points to a positive relationship between the amount of plastics exported and the amount of plastics that leaks into oceans.Footnote 124 Exports of plastics waste, which flow almost entirely from the global north to the global south, attract significant market value (USD 4.3 billion in 2017), which has a powerful reinforcing effect on the dumping of plastics waste in the global south.Footnote 125 Empirical studies of particular plastics have found that trade liberalization, enabled by international economic law, had a significant role in increasing imports of plastics waste to the global south. Xu and co-authors mapped the global imports and exports of plastics waste from 1976 to 2017.Footnote 126 They note: ‘In 2001, China joined the [WTO], which accounts for its dramatic increase in import that stimulated growing export in developed countries’.Footnote 127 Another study observed that the global trade networks for plastics waste ‘grew most tremendously during mid-1990s to early 2010s’.Footnote 128
It also likely that trade and investment liberalization has been a factor in the increase in plastics production and consumption. Plastics are well suited to the long international supply chains required for global trade and investment, and plastic packaging for goods is the most common kind of plastic produced.Footnote 129 Of the primary plastics produced, a large volume is for export (primary plastics exports accounted for 200 million metric tonnes, or USD 348 billion, in 2018).Footnote 130 Plastics production has rapidly increased since the 1950s, but especially since the 1990s – nearly half of all plastic ever manufactured was produced after 2000.Footnote 131 Urbanization processes, which are part of the integration of global economies,Footnote 132 are positively correlated to the volume of solid waste generated.Footnote 133
Further general insights into the connections between plastics consumption and trade and investment liberalization can be drawn from the body of public health work exploring the effects of trade liberalization on food consumption choices. Ultra-processed food and drinks are pre-prepared snacks (such as candy bars), drinks (such as soft drinks), and meals (such as nuggets, instant noodles, and so on) created via industrial processes.Footnote 134 Importantly, ultra-processed foods are also characterized by their ‘sophisticated packaging, usually plastic with other synthetic materials’.Footnote 135 Public health literature has shown that trade and investment liberalization, linked with the growing resources and reach of transnational food and beverage corporations, has increased the availability of plastic-packaged ultra-processed foods.Footnote 136 The share of ultra-processed foods tends to be higher in globally integrated supermarkets.Footnote 137 More broadly, increased foreign direct investment has enabled transnational food and beverage companies to shape preferences, consumption choices and related cultures through intensified marketing.Footnote 138
The link between laws that enable trade and investment liberalization and unsustainable plastics use requires further research, but a few general observations can be made. The re-establishment, in the 1990s, of a legal regime for the global flow of goods without (much) distinction, and despite well-established knowledge about plastics and their limited recyclability, arguably constitutes complicity by the law and its makers in current patterns of harmful and unsustainable plastics production and consumption. The harm to the environment and human health caused by expanding global flows of (plastics) goods and waste, enabled and supported by WTO mechanisms, was foreseeable and at least to some extent preventable. The lack of safeguards against the impacts of trade liberalization on plastics production and consumption and against the well-established dynamic of waste being exported to low- and middle-income countries is evidence of negligence and serious disregard in the very structural design of the WTO.
4.3. Potential for International Trade Law to Influence State Regulation of Plastics
Since 2015, WTO members have increasingly introduced measures that apply to imports or exports of specific plastics. The kinds of restriction and the plastics targeted vary depending on the goal.Footnote 139 For instance, in response to COVID-19, many WTO members have sought to increase the flow of medical materials and devices, which are often made with plastics.Footnote 140 More generally, while developed countries have tended to focus on specific technical standards for plastics, low-income and middle-income countries have focused on direct import prohibitions, indicating that trade law, despite its role as a structural driver of plastics, can also be an important site for protecting communities in the global south from inequitable trade pathways.Footnote 141
However, international trade law also makes it possible for a WTO member to challenge another member's regulation of plastics production and consumption on the grounds that such measures breach its obligations under one or more WTO agreements.Footnote 142 The types of measure that can be challenged under the WTO dispute resolution mechanism are wide ranging, from a legislative prohibition or levy on the sale of particular plastics or plastic products, the imposition of specific disposal obligations or standards, or limits or quotas on the quantity of plastics imported, to a policy or tax which confers a competitive advantage to one plastic product over another.
Of course, the viability of such a challenge is highly dependent on the measure in question. Regulatory intervention will not be a violation if it falls within certain exemptions. Specifically for a challenge relating to the GATT, a possible defence for a measure introduced by a WTO member (such as a measure restricting plastics) is to show that the measure ‘[relates] to the conservation of exhaustible natural resources’;Footnote 143 this has been interpreted by the WTO Dispute Settlement Bodies as requiring that the measure is ‘primarily aimed at’ the conservation of natural resources such as to conserve the materials that are used to make plastics or to conserve the natural resources that plastics pollution undermines.Footnote 144 In this respect WTO jurisprudence suggests that to be exempt from the operation of the GATT, a measure does not need to quantitatively reduce plastics-related harm; rather the respondent must show that the measure was intended to, and could reasonably lead to, the conservation of natural resources.Footnote 145
A WTO member can also challenge the laws or policies of another member by raising concerns before relevant treaty committees under the WTO. TBT Committee meetings from 2019 illustrate that WTO member states are starting to use TBT processes to raise concerns about other members’ regulatory responses to plastics pollution.Footnote 146 Both the US and the EU have raised concerns about Saudi Arabia's Technical Regulation for Plastic Products Oxo-Biodegradable.Footnote 147
Saudi Arabia, since 2016, has implemented a product standard that requires that certain types of plastics product be made up of oxo-degradable plastic and bear a specific mark of compliance with the technical regulation.Footnote 148 Oxo-degradable plastic is a petroleum-based plastic. It is highly problematic because it does not biodegrade but tends to fragment into micro-plastics. In 2019 the EU introduced a ban on single-use oxo-degradable plastics.Footnote 149 If Saudi Arabia expands its requirement that certain plastics products be oxo-degradable while the EU prohibits the use of oxo-degradable plastic, the Saudi Arabian regulation will become a significant barrier to a multitude of EU products, as was asserted by EU representatives before the TBT Committee.Footnote 150 In addition, the EU challenged the appropriateness of Saudi Arabia's proposed regulatory response for achieving its stated goal of environmental protection.Footnote 151
Ultimately, Saudi Arabia decided not to expand the classes of product to which the technical regulation applies, but its original standard remains applicable.Footnote 152 The decision by Saudi Arabia to reinvestigate its proposed technical regulation reflects how international trade law can be a mechanism through which states influence each other to improve regulatory standards for plastics. It also shows, consistent with the TBT and the SPS Agreements,Footnote 153 that prohibitions on plastics will have to be strongly supported by specific scientific evidence.
Just as WTO mechanisms can improve the regulation of plastics, they can also directly or indirectly hinder regulatory interventions that enable the recycling, and potentially the prevention, of plastics waste. The Dominican Republic questioned whether the following measures were more trade-restrictive than was necessary: firstly, the prohibitions by Trinidad and Tobago on the importation of polystyrene products for use in food services;Footnote 154 and secondly Jamaica's prohibition on importing and distributing single-use plastic bags, straws and Styrofoam containers in commercial quantities.Footnote 155 At the time, Trinidad and Tobago had not yet informed the TBT Committee of these prohibitions, as they were still formulating the regulation. Meanwhile, Jamaica responded that it would consider the Dominican Republic's concerns. Ultimately, all three countries introduced measures to ban single-use plastics and the effect, if any, of the Dominican Republic concerns is uncertain.
Overall, WTO mechanisms do not directly restrict the freedom of states to introduce plastics-specific measures and could, in fact, improve standards regarding plastics. At the same time, trade agreements have carved out spaces for challenging measures to reduce plastics consumption and imports. This creates an additional obstacle to regulating plastics use or waste. As evidenced in different WTO challenges and related scholarship,Footnote 156 such barriers could more heavily weigh on countries in the global south with fewer resources and less political influence.
Additionally, WTO law needs to be contextualized within the transnational regulatory framework for plastics more generally. The framework comprises weak and fragmented multilateral environmental treaties and non-binding initiatives that typically target specific types of plastics waste or pollution. The WTO Committee on Trade and Environment held a meeting in July 2020 to discuss how to ‘tackle plastics pollution’. The discussion focused predominantly on end-of-pipe intervention and certainly did not employ a rights- or justice-based framing.Footnote 157 It appears instead to have deployed a waste management framing for plastics which, as discussed, has limitations when it comes to genuinely reducing harm from plastics. Additionally, this framing allows actors to overlook the WTO's significant role in perpetuating unsustainable and unjust plastics production and consumption, and therefore undermines the potential for deeper transitions away from plastics.
5. PLASTICS AS A RESOURCE IN PRODUCTION PROCESSES
Since the 1990s various interrelated concepts have been introduced alongside waste management, which, broadly speaking, try to mimic natural ecosystems’ continual reuse of outputs as inputs so that waste never materializes or exists to a minimal extent.Footnote 158 These concepts include ‘closed loop’ design or supply chains, ‘industrial ecology’ and, most recently, ‘the circular economy’ (CE).Footnote 159 These conceptualizations problematize the linear structure of the economy, of which plastics forms one material dimension. Linear economies rely on the ongoing extraction of raw materials as inputs at one end of the economy to emerge ultimately as externalized waste at the other end.
The CE model has gained traction among international institutions, non-governmental organizations (NGOs) and national governments for its ability to conceptualize multiple waste streams and to provide a framework for identifying practical interventions focused on altering industrial processes.Footnote 160 Correspondingly, countries such as China and certain EU Member States have introduced laws or policies which ostensibly encourage a CE approach.Footnote 161 Similar to its precursors (for example, industrial ecology), the central aim of the CE approach is to move away from the linear flow of material goods. Instead, the CE approach centres on redesigning products and services so that they are more durable and repairable, on improving recycling and remanufacturing capabilities, and on enabling industries to use the outflows of one process as an input into another.Footnote 162 Ultimately, it is envisaged that through large-scale recycling and reuse a CE will reduce or eliminate waste. This will also reduce the demand for ‘new’ products and, consequently, obviate the extraction of natural resources and waste-related pollution.
Compared with alternative paradigms, such as integrated sustainable solid waste management, a strength of CE is that it clearly envisages waste prevention, seeking to create economic systems that rely less on the exploitation of natural resources and more on sustainable services.Footnote 163 This ‘decoupling’ of the extraction of raw materials (primary production) from economic growth is attained through so-called secondary production, in which businesses create and capture value through recycling and remanufacturing primary goods, and offering product-as-service.Footnote 164 The ideal CE weaves together the environmental benefits of longer product life with job creation, especially in the reuse, repair/refurbishing and recycling industries.Footnote 165
While the CE approach creates space for a more holistic framework for guiding interventions in the use and flow of materials like plastic, it is still a new concept with contested boundariesFootnote 166 and is not formally recognized within international law. Consistent with its seemingly neutral framing, the CE is not a political concept. It carefully avoids recognizing distributional inequalities and instead focuses on jobs and other perceived opportunities for communities.Footnote 167 It neither challenges the distribution of benefits and harm from plastics production and consumption, nor does it seek to operationalize justice or human rights-based concepts. Even in its legal and policy development, the conceptualization of CE has happened in a largely top-down manner – that is, its origins are in government documents (especially in the EU), western-based NGOs (especially the Ellen MacArthur Foundation in the UK) and academics (especially those in the US).Footnote 168 It has not emerged from community-led, bottom-up conceptualizations and activism that represents the interests of marginalized groups most affected by environmental harm, nor has it emerged from countries in the global south most affected by plastics waste. Conceptualizations of CE in formal policy and law have also not occurred as a result of, for instance, deliberative democratic processes that engage communities living near or working on waste sites; yet, these groups are likely to be directly affected by CE policies and should therefore be properly represented in institutional settings where definitions are being formalized.Footnote 169
Meanwhile, the emphasis on recycling and reuse in a CE framework can be problematic for plastics, given the practical difficulties of their disposal, and the related potential for recycling facilities to cause further environmental and related human health harm. Additionally, the CE could simply open up new markets for goods, leading to an increase in production and a drop in the price of goods, thereby incentivizing consumption.Footnote 170 The broadness of CE as a concept, and (in particular, for plastics) its inherent focus on recycling,Footnote 171 indicate that the rise to prominence of the CE may not be because it challenges ‘business as usual’, but because it can be interpreted in ways that align with ‘business as usual’, similar to ‘sustainable development’ or ‘food security’.Footnote 172 Certainly, scholars are increasingly critiquing CE as a concept that entrenches singular market-based approaches.Footnote 173 Underlying such critiques is a concern that CE does not facilitate diverse, multi-pronged interventions into systems.Footnote 174
5.1. Transnational Regulatory Responses based on the Circular Economy
The New Plastics Economy Global Commitment (Global Commitment) is a non-binding, multi-sector, international initiative led by the Ellen MacArthur Foundation and UNEP to work towards a CE approach for plastic packaging.Footnote 175 It is one of several non-binding (marine-focused) instruments on plastics.Footnote 176 What sets it apart, however, are its quantifiable targets and periodic reporting mechanisms, its recognition of the need to eliminate some forms of plastic, and its significant buy-in from influential supply chain actors.
Since its launch in October 2018, the Global Commitment has attracted over 400 signatory organizations, including almost 200 businesses representing over 20% of all plastics packaging globally; 16 governments across five continents and across national, regional and city levels; and 26 financial institutions with combined assets worth USD 4.2 trillion.Footnote 177 ‘Signatory’ in this context does not mean, of course, that the actors have adopted legally binding obligations; rather that they have registered an intention to comply. It is important that regulatory governance models seek to influence transnational corporations which are key users of plastics, and one regulatory instrument cannot provide for all. Regardless, there is a lack of significant engagement in the Global Commitment from more community-based, waste-related NGOs.Footnote 178 Nor is there any mechanism whereby civil society organizations that represent groups most affected by plastics pollution can meaningfully engage with progress on the Global Commitment.Footnote 179
Each type of actor (NGO, government or corporation) has its own set of commitments that can be divided into two types: waste prevention and waste management. The waste prevention aspect of the commitments requires corporations to ‘take action to eliminate problematic or unnecessary plastic packaging by 2025’, while governments have committed to ‘stimulating’ the elimination of those kinds of plastic. The Global Commitment includes criteria for identifying ‘problematic’ and/or ‘unnecessary’ plastic packaging. These include packaging which is not reusable, recyclable or compostable; which contains or requires in its manufacturing process hazardous chemicals; which could be avoided by reuse; which hinders or disrupts the recyclability or compostability of other items; and which has a high likelihood of ending up in the natural environment (such as small, light-waste plastics).Footnote 180
The emphasis on eliminating problematic or unnecessary plastics is further supported by broad aspirations of the Global Commitment to reduce ‘the use of virgin plastics’, ‘to decouple from finite feedstocks’, and to ‘switch to renewable feedstocks’.Footnote 181 Thus, more so than the existing treaties that intersect with plastics, the Global Commitment establishes the clearest understanding around waste prevention and what it requires, even if the criteria are broad and aspirational. In this respect it advances the goal of waste prevention and illustrates how waste prevention can be scaled up alongside interventions focused on making waste an input.
Waste management aspects of the Commitment encourage businesses to set, publish and report back on their own targets for increasing the use of recycled plastics. Meanwhile, government actors have agreed to incentivize recycling and reusability, and increase their waste management infrastructure. Importantly, the Global Commitment has clear definitions around recyclability, with recycling defined in such a way as to exclude waste-to-energy processes (as these do not create a material loop whereby plastics are reprocessed into another material).Footnote 182 The definition of recyclability also excludes hazardous processes, citing the precautionary principle.Footnote 183 Finally, the Global Commitment requires that material is actually recycled.Footnote 184 Often, terms relating to recyclability are used by companies when recycling is technically possible but not feasible in practice because of the costs involved or the lack of infrastructure in the specific region. Hence, there are some boundaries placed around what recycling will mean that could, indirectly, promote genuine recycling processes and less harmful approaches consistent with material reduction.
Principle 6 of the Global Commitment is focused on the ‘health, safety and rights of all people’, with subsection (b) acknowledging that ‘[i]t is essential to respect the health, safety, and rights of all people involved in all parts of the plastics system, and particularly to improve worker conditions in informal (waste picker) sectors’. In this way the Global Commitment has health and safety as one of its core principles, which is important for, and consistent with, various human rights. Principle 6, however, is a broad, aspirational statement. It does not push the discourse or the regulation further towards alignment with more emancipatory concepts like environmental justice or human rights. After all, Principle 6 refers to rights in general, but does not expressly acknowledge human rights, dignity or related concepts. Nor does it acknowledge the significant injustices that stem from the indiscriminate, large-scale production of plastics and the unequal flows of plastics waste. More broadly, neither rights language nor concepts of justice feature in the Global Commitment and related procedural principles.
Of course, broad, aspirational documents such as the Global Commitment have inherent limitations, indicating the need for further top-down regulatory implementation when it comes to plastics. Although it has attracted an unprecedented number of actors with significant influence over supply chains, roughly 80% of companies that produce plastic packaging have not yet opted into the Global Commitment, and may never do so.Footnote 185 Also, while periodic reporting by companies involved in producing or using plastics has been strong, there is a conflict of interest when it comes to accurate reporting, particularly considering the resistance that companies have shown to transitioning away from plastics, combined with the well-documented greenwashing strategies they have deployed regarding, for instance, so-called biodegradable or recyclable plastics.Footnote 186
In sum, the Global Commitment broadly reflects some progress around the regulatory governance of plastics, but it is ultimately a relatively weak response in the face of the economic incentives to keep using (new) plastics. It is too early to evaluate whether signatories have adequately eliminated problematic plastics. However, and probably because of the perverse economic incentives to keep producing and using virgin plastics, it appears that signatories are far from achieving their desired recycling targets, noting that recycling may not in fact reduce pollution or related burdens on natural resources.Footnote 187
6. CONCLUSION
This article has explored the ways in which the transnational regulatory instruments intersecting with plastics have conceptualized plastics, including plastics as a problem and its solutions, and operationalized these understandings into regulatory instruments. This analysis has exposed three key deficiencies in the current transnational regulation of plastics, which align with corresponding gaps in scholarship. Firstly, issues around plastics and plastics waste are seldom framed as justice or human rights issues. Secondly, we identify a lack of normative and substantive provisions regarding the prevention of plastics production and consumption. Thirdly, there is a tendency for law to enable and reinforce plastics production and consumption as well as unequal global flows of plastics. Future research should focus on framing plastics as a human rights and environmental justice issue, developing a rights-based approach to plastics regulation, deepening critiques of international economic law, and expanding analyses and conceptualizations of waste prevention in regulatory contexts.
