INC Technical Note: Non-Party Trade Provisions in Multilateral Environmental Agreements-Key Elements for Consideration in the Context of a Treaty to End Plastic Pollution
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- Center for International Environmental Law (CIEL
- Regional project
- Country project
- Document type
- Intergovernmental Negotiating Committee on Plastic Pollution - Technical Resource for Pacific Island Courtiers
Multilateral environmental agreements (MEAs) aim to address environmental issues of global concern by creating uniform and streamlined approaches and rules that apply to all parties. Treaties serve as agreements between two (or more) States that enter into an agreement, thus creating specific obligations and rights for those parties. It is generally recognized that a treaty does not create either obligations or rights for a third, non-party State without its consent.
Obligations only arise for a third State if that State expressly accepts that obligation in writing.1 The more States become party to any specific agreement, the greater the chances for the agreement to become effective. Conversely, States that are not party to an agreement can also create specific challenges for its effectiveness. Therefore, it is common for treaties, including MEAs, to include so-called non-party provisions. These provisions typically set out how a party to a treaty should interact with ‘non-party’ States, promote the ratification of the agreement and deal with the specific challenges presented by non-parties. While all provisions aim to support the efficacy of a treaty, non-party provisions take various forms. The most commonly used are provisions that:
● Require parties to encourage non-parties to become parties; and
● Impose trade restrictions on parties in their dealing with non-parties, unless those non-parties conform to the requirements of the relevant treaty (non-party trade provisions).
Plastic pollution is an issue of global concern and every step along the life cycle of plastics entails global supply chains. The future treaty to end plastic pollution will thus require non-party provisions to be truly effective. It should incentivize ratification by the greatest number of countries possible, create a level playing field, and avoid providing benefits for non-parties (also referred to as ‘free-riders’). Because of global supply chains, developing nonparty provisions, specifically around trade issues, is paramount.
This brief provides an introduction to trade provisions involving non-parties. The Annex includes specific examples from other MEAs.