This article is part of a Synergies series on reviving multilateralism curated by TESS titled From Vision to Action on Trade and Sustainability at the WTO. Any views and opinions expressed are those of the author(s) and do not necessarily reflect those of TESS or any of its partner organizations or funders.

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In an iconic scene from the classic film “The Graduate”, Mr McGuire takes aside the main character, played by the young Dustin Hoffman, and says: “Just one word. Plastics. There’s a great future in plastics, think about it.” For the WTO after the Thirteenth Ministerial Conference (MC13), the future may indeed be in plastic—that is, in the kind of global governance exemplified by the WTO’s plurilateral dialogue on plastics pollution.

MC13 brought forth a 14-page Ministerial Statement on Plastic Pollution and Environmentally Sustainable Plastics Trade. It was largely ignored or downplayed by commentators quick to express their disappointment that a grand bargain on trade and environment failed to materialize in Abu Dhabi.

The plastics initiative is sponsored so far by 78 WTO members, who (according to the WTO) account for 85% of world trade. An essential part of the context for the initiative is the launch of negotiations at the UN on a binding multilateral agreement to curb plastic pollution. As UN treaty negotiations progress, the sponsors of the WTO dialogue seek to develop a set of approaches in the multilateral trading system that can facilitate these efforts. Here is something innovative and creative on trade and environment: the effort to be proactive in preparing to integrate international environmental norms on plastic pollution into the trading system as those norms are being developed at the UN.

Thus, the ministerial statement catalogues a range of actions WTO members can take to “promote cooperative and effective trade-related policies and measures […] to reduce plastics and plastic products that are harmful to the environment or human health, or unnecessary single-use plastics and plastic packaging, associated with international trade that are not essential for medical or sanitary purposes.”

Among the trade-related measures set out in the statement are reinforcing or broadening import and export restrictions on waste, designing internal taxes to promote recyclables, imposing charges on non-reusable plastic products, as well as “[r]eview[ing] and realign[ing] tariff profiles to level the playing field between plastics and non-plastic substitutes and alternative products.”

The ministerial statement doesn’t call explicitly for such actions, but their presence among the catalogue of options is a valuable signal that the WTO system is adaptable to the goal of curbing trade that contributes to plastics pollution, as well as facilitating trade in substitute products that are sustainable. It’s an important message for the UN negotiators as they move to the completion of a treaty that will bind states to concrete measures to reduce environmental harm from plastics.

I doubt though that this will give much cheer to the WTO naysayers, whose pronouncements about the failure of MC13 were, of course, all too predictable. For the cynics, highlighting the lack of outcomes from ministerial conferences is a typical way of beating up on the organization, sometimes to the point of asserting its utter irrelevance to anything important in global economic governance.

These pronouncements beg the question of why ministerial conferences should be expected to produce results like breakthroughs in treaty negotiations, or to narrow fundamental differences of perspective—e.g. on how to curb subsidies. Bringing 165+ trade ministers together for a few days is, as USTR Katherine Tai has pointed out, a great opportunity for bilateral meetings, and the context also generated some impressive NGO networking, a plethora of brainstorming events. But why should a ministerial be expected to be a good negotiating forum?

In the heyday of neoliberalism, these gatherings were a pretext for creating a hothouse atmosphere of high-pressure, high-stakes bargaining, with Green Room tactics and all-night negotiating sessions that wore down delegates, among other dodgy tactics to get to Yes by isolating “hold outs.” At Seattle and then Cancún, developing countries in particular pushed back, leading to the collapse of the meetings. Doha was barely a success, but at the cost of a false promise of a “development round.” This could not but backfire when the expectations of what a development round should really mean were quickly quashed by developed country intransigence against rebalancing the Uruguay Round on matters like intellectual property, special and differential treatment, and policy space for subsidies and other activist economic measures.

The last ministerial that produced a “bargain” of sorts was Bali, where the multilateral Trade Facilitation Agreement was accepted by the membership, and a temporary solution was found on stockpiling and food security. In the case of Bali, then Director-General (DG) Roberto Azevêdo was careful not to raise expectations unduly, and he did much of the work of moving forward on negotiating drafts in Geneva beforehand. Azevêdo realized that if positions were not basically aligned going into the ministerial, the opportunities for negotiating would be very constrained; but on food security it took a last minute intervention of then US President Barack Obama to break the impasse.

MC12, on the heels of the pandemic, suggested the possibility of a different model for the ministerial: moving issues forward through high-level attention to them but without going the last mile to deliver a signed and sealed bargain. Thus, there was a positive result on fisheries subsidies, for example, but the work was far from done. On trade-related aspects of intellectual property rights (TRIPS) and the pandemic, agreeing to genuine flexibilities proved unsurmountable, given the strength of the pharma lobby–MC12 produced a basically stillborn or largely irrelevant vaccine waiver but with a commitment to negotiate further.

Along these lines, MC13—viewed as an inflection point for consolidating progress on some fronts and taking stock of persisting differences on others (e.g. agriculture)—did rather well. In the case of the plurilateral domestic regulation of services agreement, MC13 was a point of consolidation where many of the participating members finalized changes in their schedules to reflect commitments on domestic regulation. A definitive text of the plurilateral Investment Facilitation for Development (IFD) Agreement was released publicly. The positive significance of that was turned into a tense moment, quite unnecessarily, by the effort to strong-arm the inclusion of the IFD Agreement in Annex 4, as an official WTO plurilateral accord; this triggered disagreement from India and to some extent South Africa as well. I’ve addressed that conflict in previous TradeTakes posts; but there was in the first place no need to push the Annex 4 issue at MC13, because the IFD Agreement only comes into force once there are 75 ratifications. It is premature to place into Annex 4 an accord that is not yet in operation.

Regrettably, the DG of the WTO was nudged towards a discourse suggesting that the test of the WTO’s relevance would in significant ways be the “outcomes” of MC13. She spent too much time in Davos circles, arguably, and put too much effort into trying to pitch big business about the WTO’s importance—on digital trade, for example. The folly of this was brought home when the US, supposedly the poster child for digital trade untethered by concerns such as privacy, announced loud and clear that Washington was tacking in a different direction. The DG ought to have stuck to her original themes of inclusiveness, equity, and empowerment, crucial to a post-neoliberal vision of the WTO. These were more in evidence at MC12, though they certainly did not disappear from MC13, and are reflected in the Ministerial Declaration ending the conference.

As for the lack of a grand bargain on trade and environment, the question is less why this did not emerge at MC13 and much more whether in the first place it is something we can or should expect from the WTO, even functioning at its best. Differences between states on environment and climate are real and serious. In many cases they are deeply political (I recently attended a meeting of the Brookings Institution’s Global Council where one well-informed participant rhymed off how many countries are having major elections over the coming year). We should not underestimate the resources that the fossil fuel world has at its disposal for buying and retaining political influence, impeding progress on environment in general, and climate in particular.

There is something else too. Agents bargain in the shadow of the law (a commonly-cited implication of the Coase theorem). As debates about the WTO consistency of the EU’s Carbon Border Adjustment Mechanism (CBAM) amply illustrate, the existing legal baseline is largely that established by the Appellate Body in Shrimp/Turtle. Unilateral trade measures to protect the environment can be justifiable, but the different conditions in other states have to be taken into account, ideally through negotiation or at least dialogue with those states, but also by accommodations in regulatory design that are compatible with the overarching environmental goal. Further, the fine print of such measures must be free of unjustifiable or arbitrary discrimination; the scheme in practice must not operate in a protectionist manner. As far as grand bargains go, is it likely that WTO members could improve on this general equilibrium through negotiations in the current geopolitical environment? I am not persuaded.

On the other hand, there is lots in the way of detailed technical work and informed policy dialogue that can be done to facilitate the use of the trade system to achieve environmental goals, while preserving values of openness and non-discrimination. On CBAM-type measures, for example, the WTO has already initiated a forum on technical standards for decarbonization, an important challenge if different countries’ unilateral measures are to operate in a compatible, positively reinforcing fashion. None of this has the glamour and theatricality of a grand bargain in the form of a treaty agreed by a breakthrough on the final day of a ministerial conference. But, like the plastics initiative, it is the kind of contribution that the WTO is suited to making. Viewed in light of the constraints in today’s world, it also arguably represents state of the art global governance.

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Robert Howse is the Lloyd C. Nelson Professor of International Law at NYU School of Law.

This article was first published in TradeTakes.

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Synergies by TESS is a blog dedicated to promoting inclusive policy dialogue at the intersection of trade, environment, and sustainable development, drawing on perspectives from a range of experts from around the globe. The editor is Fabrice Lehmann.

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