Promoting responsible trade in consumer plastics to support the development of a circular plastics economy

• Pages: 677-714
• Date: 01 July 2024
• Published date: 01 July 2024
• Author: Anne Marie Miller
• Subject Matter: Derecho Internacional

NOTES

PROMOTING RESPONSIBLE TRADE IN CONSUMER

PLASTICS TO SUPPORT THE DEVELOPMENT OF

A CIRCULAR PLASTICS ECONOMY

ANNE MARIE MILLER*

“Plastics are fossil fuels in another form & pose a serious threat

to human rights, the climate & biodiversity .... I call on coun-

tries to look beyond waste and turn off the tap on plastic.”

1

António Guterres, @antonioguterres, X (Dec. 1, 2022, 5:45 PM), https://x.com/antonioguterres/

status/1598667368296751109.

–António Guterres

ABSTRACT

This Note aims to explore trade policy options that support plastics circularity

by shifting economic incentives away from the unsustainable extraction of vir-

gin fossil fuels for primary plastics production towards eff‌icient resource use

that recaptures the lost economic value inherent in plastic waste. This Note will

also highlight challenges and opportunities faced by the United States, which

holds enormous purchasing power as the top importer of intermediate and f‌inal

manufactured plastics products, synthetic textiles, and plastics packaging.

2

Diana Barrowclough (Senior Economist, Division on Globalisation and Development

Strategies, UNCTAD) et al., Global Trade in Plastics: Insights From the First Life-Cycle Trade Database, at

18, UNCTAD/SER.RP/2020/12 (Dec. 2020), https://unctad.org/system/f‌iles/off‌icial-document/

ser-rp-2020d12_en.pdf.

The United States is also a top two exporter of plastic waste.

3

As such, the

United States is in a uniquely powerful position to reverse the plastics pollution

crisis and lead international markets toward a net-zero plastics economy.

* J.D., Georgetown University Law Center; M.B.A., Fordham’s Gabelli School of Business. This

Note was inspired by my father, Daniel Miller, Esq., and written in the wake of his passing, during

a time when I became acutely aware of the precious and ephemeral nature of life. I am especially

grateful to my kind and brilliant professor, Jennifer Hillman, for her encouragement and keen

insights throughout the drafting of this Note, and for who’s course on Using Trade Tools to Fight

Climate Change this piece was originally written. My sincere thanks to all those that read various

versions of this Note and provided invaluable feedback, especially Loriane Damian. Finally, I am

grateful to Professor Katrin Kuhlmann and the Center on Inclusive Trade and Development for

serving as a continued source of inspiration by demonstrating the ways in which trade law may be

used to advance policy initiatives addressing the most pressing issues of our time. Many thanks to

the staff at the Georgetown Journal of International Law, which greatly improved this piece. All errors

and opinions are my own. V

C 2024, Anne Marie Miller.

1.

2.

3. Id. at 17.

677

Tremendous efforts are currently underway at the international policy level

to address the serious environmental and humanitarian threat that plastics

pose. This Note aims to analyze some of these efforts to identify best practices

and inform this trade policy exploration. The Paris Agreement set an ambitious

goal to keep global warming below 1.5 degrees Celsius. The trajectory of the plas-

tics sector will play a materially signif‌icant role in whether this global target is

achieved. The following three high-level targets, inspired by current interna-

tional policy efforts, may serve as useful anchors to guide the development of

specif‌ic, legally binding multilateral provisions across the full lifecycle of plas-

tics: (1) commit to recycled polymers targets of at least 25% of production by

2030; (2) end plastics pollution by 2040; and (3) decarbonize the plastics sec-

tor to reach net zero by 2045.

This Note begins by identifying key drivers of the current plastics pollution

crisis and the obstacles that have thwarted previous efforts towards circularity.

First and foremost, plastics circularity requires policy change that economically

disincentivizes single-use and virgin plastics products, incentivizes reuse and

high-value non-toxic materials, and expands the scope and scale of advanced

plastics recycling. Carefully crafted trade policy that takes a whole systems

approach to creating the right economic incentives for circularity across the

plastics lifecycle is critical to scaling existing technology solutions and achiev-

ing an end to plastics pollution.

The United Nations Sustainable Development Goals (SDGs) require con-

certed efforts to address the triple planetary crises of: (1) climate change; (2) na-

ture and biodiversity loss; and (3) pollution and waste.

4

Inger Andersen, A Leap Forward for Environmental Action, U.N. ENV’T PROGRAMME (Mar. 2,

2022), https://www.unep.org/news-and-stories/speech/leap-forward-environmental-action.

The plastics sector

contributes to each of these crises and must shift its trajectory to become part of

a low-carbon circular economy. Through the right market incentives and the lib-

eralization of existing technological advancements in recycling, bioplastics, and

plastics manufacturing powered by renewable energy, the plastics sector can

decarbonize and achieve net zero by 2045. Biodiversity loss and pollution can

both be addressed while simultaneously accelerating decarbonization efforts

through intelligent product design policy standards. Product design standards

developed by a policy panel that include waste management industry specialists,

as well as scientists, can signif‌icantly improve recycling rates, eliminate toxins

from the environment, and end plastics pollution.

I. ORIGINS OF THE PLASTICS ECONOMY . . . . . . . . . . . . . . . . . . . . . 680

A. The Role of Trade in the Plastics Economy. . . . . . . . . . . . . . 681

II. KEY DRIVERS OF THE PLASTICS ECONOMY . . . . . . . . . . . . . . . . . . 682

A. Plastics’ Life-Cycle Analysis . . . . . . . . . . . . . . . . . . . . . . . 684

4.

GEORGETOWN JOURNAL OF INTERNATIONAL LAW

678 [Vol. 55

1. Upstream: Fossil Fuel Subsidies, Toxic Additives,

and Carbon Emissions .. . . . . . . . . . . . . . . . . . . . . 684

2. Midstream: The High Cost of Poor Product Design 686

3. Downstream: Environmental Degradation, Human

Rights, and the Marine Plastics Crisis . . . . . . . . . . 689

a. China’s National Sword Policy and the

International Response to Plastic Waste .. . . . 691

b. The Basel Convention Plastic Waste

Amendments . . . . . . . . . . . . . . . . . . . . . . . . . 693

c. Marine Plastics Crisis and Human Health . . . 695

III. CONTOURS OF A CIRCULAR PLASTICS ECONOMY . . . . . . . . . . . 696

A. The Complementary Role of MEAs and TAs to Promote

Circular Plastics Trade .. . . . . . . . . . . . . . . . . . . . . . . . . . 698

B. Upstream Policy Measures .. . . . . . . . . . . . . . . . . . . . . . . . 699

1. Adapting the Montreal Protocol to Phase Out

Virgin Plastics Polymer Production . . . . . . . . . . . . 699

2. Expanding Stockholm Convention POPs to

Include Toxic Additives Commonly Used in

Plastics Production . . . . . . . . . . . . . . . . . . . . . . . . 701

3. Applying the Montreal Protocol Licensing System,

Prohibition of Trade with Non-Parties, and Critical-

Use Exemptions to the Regulation of Virgin

Plastics Polymers . . . . . . . . . . . . . . . . . . . . . . . . . . 702

C. Midstream Policy Measures . . . .. . . . . . . . . . . . . . . . . . . . 703

1. Adapting Plurilateral Carbon Clubs to Phase Out

Virgin, Single-Use Plastics and Incentivize

Resource-Eff‌icient Plastics Product Design . . . . . . 703

a. Banning Single-Use Plastics: WTO Compliance

Considerations . . . . . . . . . . . . . . . . . . . . . . . . 704

b. Leveling the Playing Field Between Primary

and Secondary Plastics . . . . . . . . . . . . . . . . . . 706

2. Updating Off‌icial Classif‌ications to Support the

Implementation of MEAs, TAs, and Domestic

Policy Measures for Plastics Circularity . . . . . . . . . 708

a. Support for Customs Off‌icials to Implement

Border Controls for Plastics Circularity . . . . . 709

b. Promoting Plastics Circularity through

International Standards for Plastics Product

Design . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 709

D. Downstream Policy Measures . .. . . . . . . . . . . . . . . . . . . . . 710

1. Raising Capital for ESM Through Internationally

Coordinated EPR Regulations .. . . . . . . . . . . . . . . 710

TRADE IN CONSUMER PLASTICS & CIRCULAR ECONOMY

2024] 679