Exploring the Option of a New Global Agreement on Marine Plastic Pollution – A Guide to the Issues

The shared understanding of an issue is articulated primarily in an agreement’s preambular paragraphs, or preamble. 52 While the length and level of detail of the preamble of existing multilateral agreements varies greatly, it normally names and describes the issue of main concern and justifies the agreement’s adoption by describing the issue’s impacts and causes . In addition, the preamble in many cases situates the agreement within the policy area in which it is intended to function by explicitly referencing other instruments seen as relevant for the agreement’s operation. Together with provisions that specify shared principles, definitions, and/or scope, the preambular paragraphs make up the guiding elements of a multilateral agreement. The articulation of the shared rules and regulations for State action, including the common institutional structures, are reflected in an agreement’s operative elements . Referred to variably as an agreement’s “operative paragraphs”, “provisions”, “articles”, “commitments”, or, as a whole, the “main body”, these elements describe what the parties to the agreement intend to do to address the issue in question – that is to say, the agreement’s prescriptive content . Broadly speaking, the operative elements of a global agreement can be further subdivided into: (1) the core provisions , that is, the acts that the parties to an agreement commit to or are authorized to carry out individually to address the issue of main concern; and (2) the supporting provisions , that is, the acts that the parties commit to or authorize to carry out individually or jointly to facilitate and enforce implementation of the core provisions , including through the creation of common institutional structures. A third category of treaty elements is the functional elements , which include formal provisions

concerning the entry into force, depositary, languages, and withdrawal. These elements are not directly related to the acts that parties commit to or are authorized to carry out under the treaty, but are rather intended to specify the technical and legal aspects related to the agreement itself. 3.2 Typical challenges in designing effective agreements Understood as an attempt to solve a collective action problem , the overarching purpose of a global agreement would be to provide States with incentives to do something (or refrain from doing something) that they would not otherwise do (or refrain from doing) unilaterally. The effectiveness of a given agreement can thus be measured in terms of the extent to which it succeeds in changing the behaviour of States. 53 A first challenge in designing effective global agreements is to articulate a convincing case for why a new global agreement is needed. Why can’t this issue be dealt with on a national or regional level? In developing the rationale for a global treaty, States tend to emphasize the transboundary properties of a given issue, highlighting, for instance, that the problem is caused by a specific mode of interaction across borders (such as international trade or travel); that its causes and effects are located in different countries (such as sulfur emissions or oil spills from ships); and/or that the issue concerns areas beyond national jurisdiction (such as the marine environment or the atmosphere). Insofar as the acts or omissions by one State have adverse unintended consequences for many other States, as is often the case for environmental problems, the issue’s transboundary properties Articulating a convincing rationale for a treaty

52 To the extent that provisions articulating the shared understanding of the issue expand beyond the preambular paragraphs. 53 The effectiveness of international environmental agreements has been the subject of academic research for several decades. For a brief overview of relevant academic literature, see for instance Oran Young (2011), “Effectiveness of international environmental regimes: Existing knowledge, cutting-edge themes, and research strategies”, PNAS, December 13, 2011, vol. 108, no. 50.

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