Power point presentation APA Format 9-11 Slides on hazardous waste incidnet such as Minimata Bay

The Minamata Convention: A Comprehensive Response to a Global Problem

Henrik Hallgrim Eriksen and Franz Xaver Perrez

This article gives an overview of the negotiation history and the main elements of the Minamata Con- vention. It starts with a short description of the global risks posed by mercury and the findings of the global assessment of 2002 that led to the proposal by Norway and Switzerland in 2003 to develop a legally binding instrument on mercury. It then discusses the interna- tional process that led to the adoption of a mandate to negotiate such an instrument in 2009, followed by a summary of the negotiation process. The article next offers an overview of the key provisions of the Conven- tion and provides an analysis of the main factors behind the outcome. It also analyzes particular diffi- culties of the negotiations connected to the concerns of specific countries. The article concludes by highlight- ing reasons why the negotiations were so successful.

INTRODUCTION

Mercury has been used for a long time because of its unique properties, being a metal that is liquid at normal temperatures. Some hazardous properties of mercury have long been known, and the negative health effects of direct exposure to mercury vapour were recognized early. However, the recognition of the negative effects on human health and the environment of the organic methyl mercury compound has been more recent. Organic mercury compounds were first described in the 1800s, and there were reports of methyl mercury poi- soning in 1865.1 However, it was only a century later, following widespread contamination, that the severe risk to human health and the environment of methyl mercury was recognized. The most notable event was the catastrophic pollution in Minamata, Japan, where industrial releases of methyl mercury caused the epi- demic known as the ‘Minamata disease’ in the 1950s and onwards.2

Scientific research further developed the understanding of the risks of methyl mercury at lower levels of expo-

sure, particularly with regard to the risks of impaired brain development in children and foetuses.3 This research also made it clear that risks from mercury were not limited to the vicinity of local releases, which had happened in Minamata. Through long-range transport and bioaccumulation in fish, risks to human health and environment could be present all around the world. Moreover, it was widely recognized that the anthropo- genic releases of mercury into the environment had been increasing significantly since pre-industrial times. As mercury is an element and is not broken down in the environment, there was growing concern that these releases would contribute to a growing pool of bioaccessible mercury in the environment.

Risk reduction measures for mercury in the 1990s were increasingly adopted in national legislation, including in the European Union (EU). At the international level, there were initiatives under the North Sea Conferences and the OSPAR Convention for the North-East Atlantic4

to reduce or eliminate mercury releases.5 Importantly, the combination of increasing global releases and potential severe risks to human health and the environ- ment spurred the initiative to undertake a global assess- ment of mercury by the United Nations Environment Programme (UNEP).

This article will give an overview of the process that led from the global mercury assessment of 2002 to the adoption of the Minamata Convention in 2013, analyze the key provisions of the Convention and conclude by highlighting reasons for the success of the negotiations.

1 J.R. Barrett, ‘An Uneven Path Forward: The History of Methylmer- cury Toxicity Research’, 118:8 Environmental Health Perspectives (2010), A352. 2 N. Iriguchi, Minamata Bay 1932 (Nippon Hyoron Sha, 2012), at x, xiii, xiv, 59, 65–67, 115 and 133–134.

3 P. Grandjean et al., ‘Cognitive Deficit in 7-year-old Children with Prenatal Exposure to Methylmercury’, 19:6 Neurotoxicology and Teratology (1997), 417. 4 Convention for the Protection of the Marine Environment of the North-East Atlantic (Paris, 22 September 1992; in force 25 March 1998). On the North Sea Conferences, see: <http://www.ospar.org/ content/content.asp?menu=00590624000000_000000_000000>. 5 The Hague Declaration in 1990 committed to a 70% reduction in releases between 1985 and 1995. See Ministerial Declaration of the Third International Conference on the Protection of the North Sea (The Hague, 8 March 1990). Mercury was also identified as a haz- ardous substance under the OSPAR Convention, with the aim to stop releases by 2020. See OSPAR Commission, Summary Record OSPAR 98/14/1, Annex 34, at 9.

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THE UNEP MERCURY ASSESSMENT

In 2001, at the 21st session of the UNEP Governing Council (UNEP GC), the United States proposed a study on mercury, stressing that it should not prejudge any actions. The EU and Iceland supported such an assess- ment, and there was also a strong call for such action from the Arctic Council. Norway, Iceland, the Nether- lands and the Czech Republic agreed, but also proposed that the assessment should cover other heavy metals of concern.6 Such a broadening of the mandate did not gain sufficient traction, and this split was to influence the later discussions on action. The decision on mercury assessment7 asked for UNEP to undertake a global assessment of mercury and its compounds, to report on the results of the assessment to the 22nd

UNEP GC, and to consider whether there is a need for assessments of other heavy metals of concern. The deci- sion included a preambular clause underlining the need to take preventive actions to protect human health and the environment, mindful of the precautionary approach.

In 2003, the Global Mercury Assessment was presented to the 22nd UNEP GC, who accepted the assessment’s finding ‘that there is sufficient evidence of significant global adverse impacts from mercury and its com- pounds to warrant further international action to reduce the risks to human health and the environment’ and decided to launch a Programme for International Action on Mercury to facilitate and conduct technical assistance and capacity-building activities to support the efforts of countries to take action on mercury pollution.8

THE CALL FOR A LEGALLY BINDING INSTRUMENT ON MERCURY

The Global Mercury Assessment underlined the inter- national dimension of the mercury problem and the need for strengthened international action. In

response, Norway and Switzerland identified the need for a comprehensive legally binding instrument on mercury, and decided to propose this course of action to the UNEP GC in 2003.9 Although Norway was the first to take the initiative, it was not a member of the UNEP GC in 2003 and therefore needed a UNEP GC member as co-sponsor to be able to formally submit its proposal to negotiate a legally binding instrument on mercury. Norway and Switzerland had a history of longstanding close cooperation on international chemicals policy and Switzerland immediately agreed to co-sponsor the pro- posal.10 The EU, who had implemented a comprehen- sive body of legislation to control emissions and the use of mercury, similarly supported this early call for a legally binding instrument, and for the Nordic EU-members, mercury was an important priority. Other key supporters were the African Group and some Latin American countries.11 The proponents for a legally binding approach to mercury argued that in light of the global dimension of the problem, including transboundary externalities and trade implications, voluntary actions alone would be insufficient to reduce use and emissions, and that a legally binding instru- ment would be the most robust and most effective framework for concrete action, including international cooperation and support.

However, the UNEP GC was not able to agree on a mandate for such negotiations in 2003. Several coun- tries, including the United States, Canada, Australia and New Zealand, opposed a legally binding approach and advocated focusing resources on voluntary action. They argued that a legally binding instrument would require a lot of time and resources to negotiate and implement, that it would be more costly and less effec- tive than direct voluntary action, that more time would be needed to assess the effectiveness of UNEP’s volun- tary mercury programme, that a voluntary approach would be ‘the way of getting things done on the ground’ and that therefore valuable resources would better be used for more immediate and effective programmes, such as strengthening the UNEP’s mercury pro- gramme.12 Moreover, China and India argued that a

6 C. Bai et al., ‘Summary of the 21st Session of the UNEP Governing Council and Second Global Ministerial Environment Forum, 5–9 Feb- ruary 2001’, 16:6 Earth Negotiations Bulletin (2001), at 9. 7 UNEP GC, Decision 21/5, Mercury Assessment (9 February 2001). 8 UNEP GC, Decision 22/4, Chemicals (7 February 2003), found at: <http://www.chem.unep.ch/mercury/mandate-2003.htm>, at section V, operative paragraphs 1 and 4 and Annex. Switzerland objected to the name ‘Mercury Programme’, as this could eliminate possibilities for further action on other heavy metals under the same framework. See S. Ganzleben et al., ‘Summary of the 22nd session of the UNEP Governing Council and Fourth Global Ministerial Environment Forum, 3–7 February 2003’, 16:30 Earth Negotiations Bulletin (2003), at 6.

9 Draft UNEP GC Decision proposed by Norway and Switzerland, on file with the authors. 10 P. Poldervaart, ‘Mercury Convention: Persistence Makes a Break- through Possible’ (2010), found at: <http://www.bafu.admin.ch/ dokumentation/umwelt/09249/09365/index.html?lang=en>. 11 S. Andresen, K. Rosendal and J.B. Skjærseth, ‘Why Negotiate a Legally Binding Mercury Convention?’, 13:4 International Environ- mental Agreements (2013), 425, at 425, 431 and 434; N.E. Selin and H. Selin, ‘Global Politics of Mercury Pollution: The Need for Multi- scale Governance’, 15:3 Review of European Community and Inter- national Environmental Law (2006), 258. 12 See S. Andresen et al., n. 11 above, at 432; UNEP, Views Submit- ted by Governments, Intergovernmental Organizations and Non- governmental Organizations on the Progress Made on a Mercury Programme (UN Doc. UNEP/GC.23/INF/19, 23 December 2004); S. Ganzleben et al., n. 8 above, at 6.

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legally binding approach could limit the right to eco- nomic development for which mercury emissions were unavoidable.13

After long discussions and compromises on both sides, it was agreed to ask the UNEP Executive Director to establish a programme for international action on mercury and to invite submissions of governments’ views on medium- and long-term actions on mercury, and to compile and synthesize these views, including on the possibility of developing a legally binding instru- ment, a non-legally binding instrument or other mea- sures or actions for consideration by the 23rd UNEP GC.14

THE ADOPTION OF A MANDATE FOR A CONVENTION ON MERCURY

The submissions by countries on views on medium- and long-term actions on mercury revealed opposing views with regard to the need for a legally binding instru- ment.15 When the UNEP GC convened again in 2005, the positions were similarly contradictory. While the United States, Australia, Japan and Canada had reser- vations against initiating negotiations for a legally binding instrument and instead proposed a partnership approach, Norway and Switzerland, supported by Iceland, called for a legally binding instrument on mercury and other heavy metals of global concern, arguing that a legally binding instrument would not compete with or replace partnerships and voluntary measures, but that it would ideally complement and support such voluntary approaches by providing a strong and committing framework.16 The EU similarly supported a legally binding approach on mercury.17

Thus, the UNEP GC decided to further develop the mercury programme, including through voluntary part- nerships; concluded that further long-term interna- tional action was required to reduce the risks from mercury; asked the UNEP Executive Director to present a progress report to the 24th UNEP GC; and decided to then assess the need for further action on mercury,

including the possibility of a legally binding instrument, partnerships and other actions.18

To further broaden the support for a legally binding instrument on mercury and other heavy metals, Swit- zerland organized a full-day side event on mercury and other metals prior to the 5th Session of the Intergovern- mental Forum on Chemicals Safety (IFCS) in 2006. During the subsequent discussions, several parties, including the African and the Asia Pacific Group, sup- ported an international legally binding instrument on mercury and other heavy metals, while the United States and the Latin America and Caribbean Group pre- ferred a non-legally binding approach.19 The IFCS finally adopted its 2006 Budapest Statement on Mercury, Lead and Cadmium, which recognized that current efforts to minimize use and reduce releases of mercury need to be expanded and invited UNEP to assess the need for further action, including the option of a legally binding instrument.20

One year later, at the 24th UNEP GC in 2007, the support for a legally binding instrument had further increased. Norway and Switzerland, together with Gambia, Iceland and Senegal, tabled a proposal for a global framework for international action on mercury, lead and cadmium, calling for the extension of UNEP’s mercury programme to lead and cadmium and for ini- tiating negotiations for a legally binding instrument on mercury that is ‘open [to] the possibility to include other chemicals of global concern should this be war- ranted’.21 The call for a binding instrument was sup- ported by the African Group, the EU, Brazil, Japan, Russia and Uruguay. The United States, noting that partnerships are more effective than legally binding mandates, and Canada, seeing no need for additional work on lead and cadmium, introduced alternative draft decisions, highlighting the need for further action through an enhanced UNEP mercury programme. This

13 See S. Andresen et al., n. 11 above, at 432. 14 Decision 22/4, n. 8 above, section V, operative paragraphs 4 and 9, and Annex. 15 UNEP, State of the Environment and Contribution of the United Nations Environment Programme to Addressing Substantive Environ- mental Challenges, Report of the Executive Director, Addendum: Chemicals Management (UN Doc. UNEP/GC.23/3/Add.1, 6 Novem- ber 2004), at 11; and UNEP, n. 12 above. 16 Draft UNEP GC Decision, n. 9 above, at paragraphs 6–9. 17 C. Bai et al., ‘Summary of the 23rd Session of the UNEP Governing Council/Global Ministerial Environment Forum, 21–25 February 2005’, 16:47 Earth Negotiation Bulletin (2005), at 5.

18 UNEP GC, Decision 23/9, Chemicals Management (25 February 2005), at operative paragraphs 22, 23 and 28–30, 34, 36 and 37. 19 K. Alvarenga et al., ‘Summary of the 5th session of the Intergovern- mental Forum on Chemicals Safety, 25–29 September 2006’, 15:141 Earth Negotiation Bulletin (2006), at 5. 20 The Budapest Statement on Mercury, Lead and Cadmium, in: Forum V, Fifth Session of the Intergovernmental Forum on Chemicals Safety (2006), found at: <http://www.who.int/ifcs/documents/forums/ forum5/final_report_no_pl.pdf?ua=1>, Executive Summary, at 8, preambular paragraph 7 and operative paragraph 6. The United States made a statement for the record, indicating that the meeting did not allow for a full and considered discussion of the issues and that the Budapest Statement does not prejudge the outcome of the future discussions in the UNEP GC. 21 UNEP, ‘A Global Framework for International Action on Mercury, Lead and Cadmium’, Proposal by Norway, Switzerland, Senegal, Gambia and Iceland for the 24th Governing Council of UNEP (UN Doc. UNEP/GC/24/L.2, 15 January 2007), proposed draft decision, paragraphs 7 and 8, on file with the authors.

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was supported by Australia, Colombia, China and India.22 After intense negotiations, the UNEP GC, noting the Budapest Statement, decided to further strengthen its mercury programme. It concluded that further long-term international action was required, and agreed to establish an ad hoc open-ended working group (OEWG) of governments, regional economic integration organizations and stakeholder representa- tives to review and assess options for enhanced volun- tary measures and new or existing international legal instruments.23

The establishment of the OEWG created new momen- tum in favour of a mercury convention. Switzerland, in close cooperation with Norway, initiated and led an informal process to broaden the support for a legally binding instrument and to narrow down the legally binding options. In fact, until then, several options of how to address mercury in a legally binding manner were discussed, including listing methyl mercury in the Stockholm Convention on Persistent Organic Pollut- ants (POPs),24 a Stockholm Convention protocol on mercury and a stand-alone convention.25 During this process, it became clear that a legally binding approach could best be realized through a new, freestanding legally binding instrument on mercury. The primary reason was the broad understanding that using existing instruments such as the Stockholm Convention would require an amendment. Additionally, some countries perceived that a new convention could become a frame- work for future regulation of other chemicals of global concern, such as lead and cadmium.26 Despite the fact that UNEP’s Executive Director Achim Steiner did not believe in a legally binding instrument for mercury,27

the support for a legally binding approach further increased throughout the work of the OEWG.28 The United States, supported by Argentina, Canada, China,

India and Mexico, however, continued to promote a voluntary approach, and proposed at the second meeting of the OEWG a ‘Programmatic Organizational Structure on Mercury’ (POSM) as an enhanced volun- tary partnership programme.29 However, the United States changed its opposition to a legally binding instrument on mercury when the Obama administra- tion entered the White House in January 2009,30 and one month later, after long negotiations, the UNEP GC finally decided at its 25th session to launch negotiations for a global mercury convention.31

The agreement to launch negotiations on a comprehen- sive convention on mercury was an important success. However, the decision limited the focus of the new con- vention on mercury. The idea of leaving the door open for other substances of global concern was subject to intensive negotiations. The African Group, EU, Jamaica, Norway and Switzerland strongly argued for allowing the new convention, while initially focusing on mercury, to be able to address other substances at a later stage, if the international community would con- clude that such other substances should also be addressed in a legally binding manner. Reasons for this included the desire to prevent the unnecessary prolif- eration of instruments32 and the desire to have a legally binding framework ready for lead and cadmium, which were considered by some States to be as problematic as mercury. However, the United States, Canada, Austra- lia, Japan and others were not ready for this flexibility. Eventually, the mandate for a new convention was limited to mercury, but it was agreed that the mandate could be supplemented by future decisions of the UNEP GC.33

THE NEGOTIATING PROCESS

The mandate for negotiating a global legally binding instrument on mercury specified that the intergovern-

22 The American proposal is contained in UN Doc. UNEP/GC/24/ CRP.1 (2007); the Canadian proposal in UN Doc. UNEP/GC/24/ CRP.2 (2007). 23 UNEP GC, Decision 24/3, Chemicals Management (9 February 2007), at preambular paragraph 4 and paragraphs 16, 17 and 28–30. 24 Stockholm Convention on Persistent Organic Pollutants (Stock- holm, 22 May 2001; in force 17 May 2004) (‘Stockholm Convention’). 25 See N.E. Selin and H. Selin, n. 11 above, at 264–266; S. Andresen et al., n. 11 above, at 430. 26 F. Perrez and G. Karlaganis, ‘Emerging Issues in Global Chemicals Policy’, in: P. Wexler and J. van der Kolk (eds.), Chemicals, Environ- ment, Health: A Global Management Perspective (CRC Press, 2012), 689, at 694; Federal Office for the Environment, Report from the first Glion Like-minded Meeting (May 2008), on file with the authors. 27 See S. Andresen et al., n. 11 above, at 434, footnote 12. See also Statement by Achim Steiner (October 2008), found at: <http:// www.chem.unep.ch/mercury/OEWG2/ED_OEWG- 2_%20statement.pdf>. 28 See S. Andresen et al., n. 11 above, at 43. A legally binding instrument on mercury was explicitly supported by the African Group, the Group of Central and Eastern European Countries, the EU, the Dominican Republic, Japan, Mauritius, Norway, Oman, Qatar, Russia, Senegal, Switzerland and Uruguay. T. Akanle, M. Ashton, W. Mwango and K. Xia, ‘Second Meeting of the Ad Hoc OEWG to

Review and Assess Measures to Address the Global Problem of Mercury, 6–10 October 2008’, 16:72 Earth Negotiations Bulletin (2008), at 3 and 7. 29 See T. Akanle et al., n. 28 above, at 3 and 7; S. Andresen et al., n. 11 above, at 432. 30 See S. Andresen et al., n. 11 above, at 432–434 (indicating that the United States had a strong interest in more effective international regulation, as only 17% of the mercury deposited in the United States came from American or Canadian sources); H. Selin, ‘Global Envi- ronmental Law and Treaty-making on Hazardous Substances: The Minamata Convention and Mercury Abatement’, 14:1 Global Environ- mental Politics (2013), 1, at 7. 31 UNEP GC, Decision 25/5, Chemicals Management, including Mercury (20 February 2009), at paragraphs 26–31. See S. Andresen et al., n. 11 above, at 434–437. 32 See F. Perrez and Karlaganis, n. 26 above, at 717–721. 33 See Decision 25/5, n. 31 above, at paragraphs 26 and 40; A. Appleton et al., ‘Summary of the 25th Session of the UNEP Govern- ing Council/Global Ministerial Environment Forum, 16–20 February 2009’, 16:78 Earth Negotiations Bulletin (2009), at 7.

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mental negotiating committee (INC) was to commence its work in 2010 with the goal of completing it prior to the 27th UNEP GC in early 2013, and to convene in the second half of 2009 an ad hoc OEWG to prepare for the work of the INC.34 Moreover, the INC was asked to ‘develop a comprehensive and suitable approach to mercury’ that would include provisions on: reducing the supply of mercury; the demand for mercury in prod- ucts and processes; international trade in mercury; atmospheric emissions of mercury; mercury- containing waste and contaminated sites; knowledge and information; arrangements for capacity-building, technical and financial assistance; and compliance.35

The INC was also called upon to consider ‘flexibility in that some provisions could allow countries discretion in the implementation of their commitment’ in the devel- opment of the new convention.36 To develop such a comprehensive convention within less than four years was a very ambitious task, which needed careful plan- ning, strong leadership, trust in the process, and politi- cal will and constructive engagement by all.

The decision of the OEWG to structure the work of the INC by organizing five session with 7–9 months between each meeting proved to be a wise decision: it allowed for sufficient time between sessions to digest the outcomes of the meetings, to prepare relevant docu- ments, interact informally between sessions, further develop national positions and prepare for the next meeting. The INC agreed – based on a proposal of the Group of Latin American and Caribbean States (GRULAC) – to discuss substantive and horizontal issues concurrently to ensure a balance throughout the negotiation process between commitments, support and compliance.37

The negotiations progressed well. Throughout the process, Switzerland organized informal consultations between key actors. Still, each of the main thematic areas of negotiations involved specific difficulties. There was broad agreement that supply should be reduced by limiting the sources of mercury and many countries therefore favoured a total ban of mercury mining. China, however, insisted that it needed to be able to continue to mine mercury for a limited period of time to provide raw materials for its production of vinyl chloride monomer and other products, and that the mining in question had legal rights to continue. The discussions of trade in mercury involved the problem that the United States could not accept a trade restric- tion of imports of mercury from a non-party. With regard to products, Switzerland and Norway, supported

by the African Group, proposed an approach to ban all mercury-containing products and processes with the exception of those listed in an annex, while the other countries preferred to ban only listed products.38 Fur- thermore, the phasing out of mercury in dental fillings was contentious.

Emissions to the atmosphere was one of the most dis- puted substantive areas. For some countries, strong provisions on emissions were considered crucial given that the first global mercury assessment showed that atmospheric emissions were the largest source of global mercury pollution. They argued for binding obligations to use best available techniques and best environmental practices. A few countries, however, argued that emis- sions should be addressed only with voluntary mea- sures. The particular sources of emissions that would be addressed were also controversial. The discussions of artisanal small-scale gold mining (ASGM) first required agreement on the adoption of a voluntary or a manda- tory approach;39 second, it required agreement on whether the trade in mercury for ASGM should be restricted (this agreement was only reached in the last round of negotiations).40 The substantive negotiations on the objective and definitions were also deferred to the last round of negotiations as they depended on the content of the measures and obligations to be devel- oped.41 Interestingly, the issues that were resolved last were not the substantive obligations on managing or eliminating mercury risks, but questions on how to refer to the principle of common but differentiated responsibilities (CBDR), financing and support, and compliance. These topics could only be agreed in a package presented by the Chairman following all-night meetings of a small group of ‘Friends of the Chair’.42

After the fourth round of negotiations, many central issues still lacked consensus, including supply and trade of mercury, emissions, products and processes, the question of whether a specific provision on health was needed, finance, compliance and CBDR.43 To foster consensus, the Chair prepared a proposal for a compro-

34 See Decision 25/5, n. 31 above, at paragraphs 26 and 32. 35 Ibid., at paragraph 27. 36 Ibid., at paragraph 28. 37 M. Ashton, Briefing Note on the Mercury OEWG (International Institute for Sustainable Development, 2009), found at: <http:// www.iisd.ca/chemical/wginc1/brief/brief_mercury.pdf>, at 2.

38 S. Aguilar et al., ‘Summary of the Fourth Meeting of the Intergov- ernmental Negotiating Committee to Prepare a Global Legally Binding Instrument on Mercury, 27 June–2 July 2012’, 28:15 Earth Negotiation Bulletin (2012), at 5. 39 T. Kantai, J. Templeton and K. Xia, ‘Summary of the Third Meeting of the Intergovernmental Negotiating Committee to Prepare a Global Legally Binding Instrument on Mercury, 31 October–4 November 2011’, 28:8 Earth Negotiations Bulletin (2011), at 6. 40 P.M. Kohler et al., ‘Summary of the Fifth Meeting of the Intergov- ernmental Negotiating Committee to Prepare a Global Legally Binding Instrument on Mercury, 13–19 January 2013’, 28:22 Earth Negotiations Bulletin (2013), at 10. 41 M. Ashton, P. Kohler and K. Xia, ‘Summary of the Second Meeting of the Intergovernmental Negotiating Committee to Prepare a Global Legally Binding Instrument on Mercury, 24–28 January 2011’, 28:7 Earth Negotiations Bulletin (2011), at 4; P.M. Kohler et al., n. 40 above, at 4; S. Aguilar et al., n. 38 above, at 3. 42 See P.M. Kohler et al., n. 40 above, at 4. 43 Ibid., at 3 and 22–23.

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mise text, Japan facilitated discussions on products and processes, and Switzerland hosted an informal meeting with key actors in Glion (near Geneva) two months prior to INC 5, where possible solutions emerged for most of the open issues. Nevertheless, as it was uncer- tain whether INC 5 (which was held in Geneva on 13–18 January 2013) would be able to achieve agreement on all open issues, Switzerland prepared for a resumed INC 5 in Geneva in March 2013. To ensure that pres- sure and commitment to finalize the negotiations during INC 5 were maintained, only a few persons knew about this option of a resumed INC. However, on Sat- urday morning, 19 January, at 7 am, after a long week of intensive negotiations, INC 5 agreed on the text of the Minamata Convention on mercury, which was formally adopted and opened for signature at the Diplomatic Conference of Plenipotentiaries in Kumamoto, Japan, on 10 October 2013.

THE MINAMATA CONVENTION AND ITS KEY PROVISIONS

The Minamata Convention, negotiated in less than four years, is a comprehensive treaty addressing mercury throughout its life cycle. It benefited strongly from factual and technical input, including from UNEP, the World Health Organization and civil society. It is the first new environmental treaty in over a decade, and is broadly seen as a proof of the potential of multilateralism. This section offers an overview of the key provisions of this new treaty and provides a brief analysis of the main factors behind the outcomes.

NAME OF THE CONVENTION The Convention’s name refers to the Japanese town of Minamata where methyl mercury releases from a factory contaminated fish and led to the poisoning of the local population.44 The offer by Japan to host the diplomatic conference to sign the Convention in Kuma- moto (near Minamata) and to organize a ceremony in Minamata in remembrance of the Minamata victims and the proposal to name the Convention the ‘Minamata Convention on Mercury’ was broadly sup- ported by the countries concerned. The symbolic name should not only remind us of the tragedy of the mercury pollution that occurred in Minamata, but it should also generally draw our attention to how the failure to adopt and implement adequate environmental policies can lead to inacceptable human suffering. However, it drew mixed reaction from Minamata disease victims: while some welcomed it, others criticized the name, arguing that the Convention does not sufficiently reflect the

lessons from the Minamata tragedy. They argued that it is especially deficient because it does not clarify the responsibility of polluters and thus ‘dishonours the victims of Minamata disease’.45 Nevertheless, as Germany phrased it during the diplomatic conference, it is generally felt that using the name ‘Minamata’ means that it will not only be associated with a problem; it will also signify a solution.46

PREAMBLE AND PRINCIPLES The preamble of the Minamata Convention factually recognizes that mercury is a chemical of global concern and it notes the health concerns from exposure to mercury, the particular vulnerabilities of Arctic ecosys- tems and indigenous communities, and the lessons of the Minamata disease.47 Moreover, it makes explicit and implicit references to several policy concepts and principles commonly cited in international environ- mental practice. It refers to the principles of the Rio Declaration, including, inter alia, CBDR.48 It invokes the principle of global or common concern by noting that mercury is a chemical of global concern.49 It refers to future generations by highlighting the health con- cerns specifically of future generations.50 It reflects the importance of financial, technical, technological and capacity-building support,51 and stresses that parties are allowed to take additional domestic measures for the protection of human health and the environment beyond those foreseen by the Convention.52 Finally, by stating that trade and the environment are mutually supportive, that the Minamata Convention does not affect rights and obligations under existing interna- tional agreements, and that this recital creates no

44 See N. Iriguchi, n. 2 above, at x and 59.

45 ‘Minamata Convention is Adopted’, Japan Times (10 October 2013), found at: <http://www.japantimes.co.jp/news/2013/10/10/national/ minamata-convention-is-adopted/>; P.M. Kohler et al., n. 40 above, at 22; IPEN, ‘Controversy Grows over Proposed Name, Minamata Con- vention’ (13 January 2013), found at: <http://www.ipen.org/news/ controversy-grows-over-proposed-name-minamata-convention>. 46 R. de Ferranti, P.M. Kohler and S. Malan, ‘Summary of the Diplo- matic Conference of Plenipotentiaries on the Minamata Convention on Mercury and Its Preparatory Meeting, 7–11 October 2013’, 28:27 Earth Negotiation Bulletin (2013), at 13. 47 Minamata Convention on Mercury (Minamata, 19 January 2013; not yet in force), at preambular paragraphs 1, 5–7. 48 Ibid., at preambular paragraph 4. 49 Ibid., at preambular paragraph 1. On the principle of common concern, see generally T. Cottier, The Emerging Principle of Common Concern (NCCR Trade Regulation, April 2012). 50 Minamata Convention, n. 47 above, at preambular paragraph 5. On the concept of future generations, see, e.g., E. Agius and S. Busuttil (eds.), Future Generations and International Law (Earthscan, 1998); A. d’Amato, ‘Do We Owe a Duty to Future Generations to Preserve the Global Environment?, 84:1 American Journal of International Law (1990), 190; E.B. Weiss, In Fairness to Future Generations: Interna- tional Law, Common Patrimony, and Inter-generational Equity (Transnational, 1989). 51 Minamata Convention, n. 47 above, at preambular paragraph 8. 52 Ibid., at preambular paragraph 13.

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hierarchy between the Convention and other interna- tional instruments, the preamble confirms the principle of no hierarchy, mutual supportiveness and deference between trade and the environment.53

Interestingly, there are no specific references to the pre- cautionary and the polluter pays principles; both are ‘lumped in’ with the reaffirmation of the principles of the Rio Declaration.54 Precaution was referred to in the UNEP GC decision of 2001 calling for a global mercury assessment and in the UNEP GC decision of 2005 on strengthening UNEP’s mercury programme.55 During the negotiations, delegations did not pay much atten- tion to the principle. During the final negotiations of the preamble at INC 5, several delegations argued that if CBDR was specifically mentioned in the Convention, precaution should also be referred to, as well as several other principles. However, no country was really defending an explicit reference to precaution and del- egations were satisfied with the general reaffirmation of the Rio Declaration principles. One explanation for this may be that as the risks and negative impacts of mercury are well established and do not involve scien- tific uncertainty, mercury does in fact not raise an issue of precaution but rather an issue of prevention – and prevention has to be seen as the concept underpinning the entire convention.

Throughout the negotiations, the polluter pays prin- ciple received support from several government delega- tions and from nongovernmental organizations in the context of the discussions of the preamble, mercury- containing wastes and contaminated sites, storage and finance.56 However, it remained unclear how the polluter pays principle could and should be operationalized and no concrete wording proposal was submitted during the negotiations. Delegations were similarly satisfied with the general reaffirmation of the Rio Declaration.

DIFFERENTIATION, FLEXIBILITY AND COMMON BUT DIFFERENTIATED RESPONSIBILITIES The question of whether and how the Convention should differentiate between countries was one of the most contentious issues in the negotiations. Several develop- ing countries argued that the new instrument should, based on Principle 7 of the Rio Declaration (on CBDR),57

differentiate between developed and developing coun- tries. Other countries, however, took the view that while differentiation according to responsibilities and capa- bilities may in some cases be important, such differen- tiation should be based on the specific circumstances of countries and reflect today’s socio-economic realities where developing countries are the largest source of atmospheric emissions and where several developing countries have a higher per capita gross domestic product than some developed countries.58 A differentia- tion according to two rigid, historical classes of countries would therefore neither be equitable nor effective.59

The mandate for the negotiations acknowledged the need to take into account, in addition to the other rel- evant Rio principles, the principle of CBDR as set out in the Principle 7 of the Rio Declaration. Specifically, it called upon negotiators to consider ‘flexibility in that some provisions could allow countries discretion in the implementation of their commitment’.60 During the negotiations, arguments were made to introduce differ- entiation between developed and developing countries in four areas: (i) specific obligations such as in the context of emissions or trade – for instance by provid- ing mandatory control measures only for developed countries or by setting different timelines;61 (ii) compli- ance;62 (iii) financing;63 and (iv) as a general principle in the preamble setting the context for the substantive provisions of the treaty.64

53 Ibid., at preambular paragraphs 10–12. On the principle of no hierarchy, mutual supportiveness and deference, see, generally, F.X. Perrez, ‘The Mutual Supportiveness of Trade and Environment’, American Society of International Law: Proceedings of the 100th

Annual Meeting (2006), 26; F.X. Perrez, ‘Risk Regulation, Precaution and Trade’, in: D. Wüger and T. Cottier (eds.), Genetic Engineering and the World Trade System (Cambridge University Press, 2008), 246. 54 IPEN, ‘Guide to the New Mercury Treaty’ (2013), found at: <www.ipen.org/pdfs/ipen-booklet-ht-treaty-en.pdf>, at 2. 55 UNEP GC, Decision 21/5, Mercury Assessment (9 February 2001), at preambular paragraph 6; UNEP GC, Decision 23/9, n. 18 above, at preambular paragraph 5. 56 M. Ashton, T. Kantai, J. Templeton and K. Xia, ‘Summary of the First Meeting of the Intergovernmental Negotiating Committee to Prepare a Global Legally Binding Instrument on Mercury, 7–11 June 2010’, 28:6 Earth Negotiations Bulletin (2010), at 7; M. Ashton et al., n. 41 above, at 2; T. Kantai et al., n. 39 above, at 8; S. Aguilar et al., n. 38 above, at 3, 8–9; P.M. Kohler et al., n. 40 above, at 14.

57 Rio Declaration on Environment and Development, found in Report of the UN Conference on Environment and Development (UN Doc. A/CONF.151/26/Rev.1 (Vol. I), 14 June 1992), Annex 1, Principle 7. 58 World Bank, ‘GDP per Capita (current US$) for 2009–2013’, found at: <http://data.worldbank.org/indicator/NY.GDP.PCAP.CD>. 59 See T. Kantai et al., n. 39 above, at 13. 60 See Decision 25/5, n. 31 above, operative paragraphs 22 and 28. 61 See T. Kantai et al., n. 39 above, at 5 (Chile calling for the incor- poration of CBDR in the articles on trade) and 13 (developing countries arguing that mandatory control measures failed to reflect socio-economic realities); M. Ashton et al., n. 41 above, at 8 (India, referring to CBDR, cautioning against ambitious timelines and calling for voluntary reductions rather than elimination of emissions). 62 See T. Kantai et al., n. 39 above, at 9; M. Ashton et al., n. 41 above, at 10; M. Ashton et al., n. 56 above, at 5. 63 See T. Kantai et al., n. 39 above, at 8; M. Ashton et al., n. 41 above, at 10. 64 See P.M. Kohler et al., n. 40 above, at 5; M. Ashton et al., n. 41 above, at 3. Another proposed approach – opposed by Brazil and China – was to require significant aggregate mercury emitters to take on additional responsibilities to control emissions. See S. Aguilar et al., n. 38 above, at 7–8.

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Countries agreed that the Convention should not differ- entiate between developed and developing countries in the substantive provisions and obligations or with regard to the compliance procedure. A general statement was included in the finance article of the Convention that ‘[t]he overall effectiveness of the implementation of this Convention by developing country parties will be related to the effective imple- mentation’ of that article.65 This is a factual statement, however, and clearly a much more subtle formulation than the provision of the United Nations Framework Convention on Climate Change (UNFCCC), which states that:

The extent to which developing country parties will effec- tively implement their commitments under the Convention will depend on the effective implementation by developing country parties of their commitments under the Convention related to financial resources and transfer of technology.66

In fact, while the provision of the UNFCCC is construed by some as conditioning implementation on support, this argument cannot be made with regard to the Minamata Convention. First, the overall effectiveness of the implementation by developing countries is only ‘related to’ and not dependent of the effective imple- mentation of the article on financing. Second, the article on financing explicitly provides that each party (i.e., also each developing country party) has to under- take to provide, within its capabilities, resources for the national implementation of the Convention.67

With regard to financing, in line with the general approach taken by multilateral environmental agree- ments, countries agreed to include specific articles on financial, capacity, technical and technology support for developing country parties and parties with econo- mies in transition.68 Similarly, the Secretariat should facilitate assistance, particularly to developing country parties and parties with economies in transition.69 Yet unlike the provisions of other agreements, not only developed countries are obliged to provide such support: all parties, within their capabilities, are invited to contribute to the financial mechanism;70 all parties are called to cooperate to provide, within their respec- tive capabilities, capacity-building and technical assis- tance to developing country parties;71 and developed country parties and other parties within their capabili- ties shall promote and facilitate the development,

transfer and diffusion of, and access to relevant tech- nologies to developing countries.72

The reflection of the principle of CBDR in the preamble of the Convention became the focus of discussions on differentiation in the last phases of the negotiations. The draft negotiating text that was presented by the Chair to the last negotiation round (INC5) included the same preambular provision – ‘[r]ecognizing the impor- tance of common but differentiated responsibilities in addressing environmental and human-health problems associated with the improper handling of mercury’ – as presented in previous INCs.73 The issue of how Prin- ciple 7 of the Rio Declaration could be reflected could not be solved within the normal negotiations and had to be addressed by a small Friends of the Chair group, together with the issue of financing. While Brazil in particular insisted on the necessity to refer to Principle 7, the United States and other countries argued that an unchanged repetition of the principle does not suffi- ciently reflect the changes in the socio-economic reali- ties over the last years. Worried by the use of the principle by some within the climate change negotia- tions to defend a non-dynamic ‘firewall’ between devel- oped and developing countries, they were concerned that Principle 7 could later be used as an argument that the Convention does not have the same legal force for developing countries as for developed countries and that action by developing countries is conditional upon prior action and support by developed countries. Finally, on Saturday morning, the Chair was able to present a compromise package according to which the preamble recalled

the United Nations Conference on Sustainable Develop- ment’s reaffirmation of the principles of the Rio Declaration on Environment and Development, including, inter alia, common but differentiated responsibilities, and acknowl- edging States’ respective circumstances and capabilities and the need for global action.74

Thus, while CBDR is not directly reaffirmed, its reaffir- mation by the Rio+20 Conference is recalled, and States’ respective circumstances and capabilities are acknowledged. This acknowledgment of States’ respec- tive capabilities is setting a clear framework for the subsequent substantive provisions of the Convention; the legal relevance of the mere recalling of an affirma- tion of Principle 7 of the Rio Declaration is, however, not very clear.

Nevertheless, while the final agreement reflects the view that the Convention should not rely on a concept of65 Minamata Convention, n. 47 above, Article 13.2.

66 United Nations Framework Convention on Climate Change (New York, 9 May 1992; in force 21 March 1994), Article 4.7. 67 Minamata Convention, n. 47 above, Article 13.1. 68 Ibid., Articles 13 and 14. 69 Ibid., Article 24.2(b). 70 Ibid., Article 13.12. 71 Ibid., Article 14.1. See also Stockholm Convention, n. 24 above, Article 12.3.

72 Minamata Convention, n. 47 above, Article14.3. 73 UNEP, Draft Text for a Global Legally Binding Instrument on Mercury (UN Doc. UNEP(DTIE)/Hg/INC.5/3, 11 October 2012), found at: <http://www.unep.org/chemicalsandwaste/Portals/9/Mercury/ Documents/INC5/5_3_e_text.pdf>, at 16, preambular paragraph 2. 74 Minamata Convention, n. 47 above, preambular paragraph 4; see P.M. Kohler et al., n. 40 above, at 4.

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CBDR in the sense of dividing the world into developed and developing countries, it does provide for targeted differentiation and flexibility in specific substantive provisions. The Convention promoted flexibility by offering parties the possibility to ask for time-limited exemptions for phase-out dates for products and pro- cesses.75 With regard to emissions, parties may adopt different measures in respect of different existing source categories;76 and guidance on best available techniques (BAT) and best environmental practices (BEP) needs to take into account the difference between new and existing sources.77 Moreover, only parties that have identified relevant point sources are to take mea- sures to control releases.78

With regard to ASGM, the Convention provides flexibil- ity by requiring only parties with more than insignifi- cant ASGM to develop a national action plan.79 Public information, awareness and education should take place within a party’s capabilities, and parties need to take into account their respective circumstances and capabilities when cooperating on research, develop- ment and monitoring.80

Finally, because the United States required specific flexibility, it was agreed: (i) that the relevant defini- tions of the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal81 apply only to the parties of the Basel Convention;82 (ii) that a party may, under certain con- ditions, allow imports from a non-party without certi- fication that the mercury is not from a not allowed source;83 and (iii) that a party may, under certain con- ditions, adopt different measures than not allowing manufacture, import or export of phased-out mercury- added products.84 It is difficult to find the right amount of flexibility to accommodate the specific needs of a country.85 On the one hand, broad participation – and especially participation by key actors – requires flexibil- ity; on the other hand, such flexibility should not under- mine consistency, coherence and multilateralism. The specific solutions found for the United States are cer- tainly in line with the mandate of the negotiations to

consider flexibility in the implementation of commit- ments, and they are stringent enough not to undermine the multilateral approach of the Convention. Indeed, even though the United States was not able to sign the Convention at the diplomatic conference due to the shutdown of its government, it became the first country to ratify the Minamata Convention – a clear signal that it was worth it to accommodate the specific American concerns.

OBJECTIVE AND DEFINITIONS The objective of the Convention is to protect human health and the environment from anthropogenic emissions and releases of mercury and mercury com- pounds.86 Other options discussed during the negotia- tions focused on the minimization and, where feasible, ultimate elimination of anthropogenic mercury releases, on the prevention of the risk or of adverse effects on human health and the environment, and on the recognition of the life cycle approach.87 The agree- ment focusing on the protection of human health and the environment from mercury takes a similar approach as the Stockholm Convention;88 however, it does not refer to precaution and it limits the focus to the protec- tion from anthropogenic emissions and releases. As per- sistent organic pollutants are man-made, this second difference is self-evident.

The Convention defines in Article 2 only those technical terms used several times throughout the treaty, while terms used only in one provision are defined in those specific provisions. Thus, Article 3 on mercury supply sources and trade includes specific definitions relevant only for that article, and ‘manufacturing processes in which mercury or mercury compounds are used’, ‘emis- sions’, ‘releases’ and ‘mercury waste’ are defined in the respective provisions of the Convention.89 Moreover, to ensure consistency and coherence in the international regulation of chemicals, the Minamata Convention adopts a similar approach to the definition of technical terms also used in other conventions. Thus, the defini- tions of ‘best available techniques’ and ‘best environ- mental practices’ generally follow the definitions of those terms in the Stockholm Convention.90 However, as a non-party to the Basel Convention, the United States could not accept that the relevant definitions of the Basel Convention would also apply to waste covered under the Minamata Convention. It was therefore agreed that the relevant Basel Convention definitions

75 Minamata Convention, n. 47 above, Article 6. 76 Ibid., Article 8.6. 77 Ibid., Articles 8.8(a) and 9.7(a). 78 Ibid., Article 9.4. 79 Ibid., Article 7.3. 80 Ibid., Articles 18–19. 81 Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal (Basel, 22 March 1989; in force 5 May 1992). 82 Minamata Convention, n. 47 above, Article 11.1. 83 Ibid., Article 3.8–3.10. 84 Ibid., Article 4.2. 85 See, e.g., D. Bodansky, The Durban Platform Negotiations: Goals and Options (Harvard Project on Climate Agreement, 2012), at 8, indicating that: ‘Often, who gets the most out of an agreement depends on the relative power of the players: the countries that are most powerful are able to capture the biggest share of the gains.’

86 Minamata Convention, n. 47 above, Article 1. 87 See M. Ashton et al., n. 56 above, at 4; M. Ashton et al., n. 41 above, at 4; S. Aguilar et al., n. 38 above, at 3. 88 Stockholm Convention, n. 24 above, Article 1. 89 Minamata Convention, n. 47 above, Articles 3.1–3.2, 5.1, 8, 9 and 11. 90 Ibid., Article 2(b) and 2(c); Stockholm Convention, n. 24 above, Article 5(f).

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apply only to parties to the Basel Convention, and other countries would be required to use those definitions as guidance.91 It is generally assumed that this will not lead to problems in the implementation of the Conven- tion, as most countries are party to the Basel Conven- tion and the United States is expected to employ similar definitions and practices.

SUPPLY AND TRADE The discussion on supply and trade focused on whether some sources of mercury supply should be prohibited, or ‘not allowed’ as it was termed in the Convention, and on how trade should be limited or directed towards allowed uses or waste disposal. It was agreed that no new mercury mines could be started up, and that exist- ing mines needed to close 15 years after entry into force at the latest.92 The only mines in operation are in Kyrgyzstan and China. As Kyrgyzstan already had announced a conditional closure of its mines in 2009,93

the discussion essentially centred on how fast China was willing and able to commit itself to closing its mercury mining that was producing mercury for inter- nal use in China’s industry. Excess mercury from the chlor-alkali sector would be considered waste and be taken out of circulation.94

Both of these provisions were the subject of hard nego- tiations, as many countries found it essential to prevent the supply of large amounts of mercury stimulating the continued use of mercury in ASGM and in (allowed) products. Many countries also considered that recycled and reprocessed mercury from products and processes would be sufficient to satisfy global demand in the long run. However, restrictions on supply would limit the provision of mercury for allowed uses under the Con- vention. Some countries, notably Norway, Switzerland and the EU, had argued for a hierarchy of the different supply sources for mercury, with primary mercury from mining being the least preferred source, and recycled mercury being the most preferred source. They argued for a gradual phase-out of all sources of supply, except for recycled mercury which eventually would be the only allowed source, but no agreement was reached on this matter. Ultimately, it was seen as being in line with the objective of the Convention to introduce special

restrictions on the supply of mercury from primary mining and the chlor-alkali sector, and it is indeed an important success of the Convention to limit any use of mercury from primary mining to allowed uses under the products and processes provisions, and excess mercury from decommissioned chlor-alkali facilities to be taken off the market altogether. Moreover, mercury from primary mining cannot be used for ASGM.95

Finally, a system of written consent was established for the trade in mercury: export of mercury to other parties is only allowed after informed consent; export to non- parties requires additional certification that offers an equivalent level of control; and imports from non- parties are only allowed upon certification that the mercury is not from a source not allowed under the Convention, such as new mercury mining or decommis- sioned chlor-alkali factories.96

Another difficult issue that needed to be resolved con- cerned the clear position of Chile to exclude the very small quantities (so-called ‘trace quantities’) of mercury found in non-mercury minerals and metals;97 this was resolved by inserting a special provision that excluded such trace quantities from the article.98

In the negotiations, the American position was that it could not allow trade restriction on imports. This created a fundamental problem, because if the United States as a party would allow imports of mercury from not allowed sources, such mercury could then be re-exported to other parties. This would undermine the basic concept to limit the supply of mercury by phasing out certain sources. The United States proposed a solu- tion that was very much targeted to its legal situation: a party may not apply the trade restrictions on mercury imports from non-parties, if it maintains comprehen- sive restrictions on export of mercury and has domestic measures in place to ensure that imported mercury is managed in an environmentally sound manner. Fur- thermore, the party has to notify and inform the Secre- tariat about its export restrictions and domestic measures and about the quantities and countries of origins of mercury imported from non-parties. More- over, the Implementation and Compliance Committee has to review and evaluate such information.99 Never- theless, for many countries, the trade restriction vis-à- vis non-parties was fundamental and they were concerned that this exemption could over time be misused by other parties that do not have measures in place as stringent as the American measures. Switzer- land finally made a proposal to time-limit the availabil- ity of this exemption: the possibility not to apply the

91 Minamata Convention, n. 47 above, Article 11.1. 92 Ibid., Article 3.3–3.4. See also H. Selin, n. 30 above, at 7–9. 93 See United Nations Institute for Training and Research, ‘Kyrgiz Government Announces Conditional Closure World’s Last Remaining Exporting Mercury Mine’ (20 October 2009), found at: <http:// www.unitar.org/kyrgyz-government-announces-conditional-closure- world-s-last-remaining-exporting-mercury-mine>. 94 Minamata Convention, n. 47 above, Article 3.5(b).

95 Ibid., Article 3.4 and 3.5(b). 96 Ibid., Article 3.6–3.8. 97 See P.M. Kohler et al., n. 40 above, at 6. 98 Minamata Convention, n. 47 above, Article 3.2 (b). 99 Ibid., Article 3.9.

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trade restriction to non-parties ceases to be available after conclusion of the second meeting of the Confer- ence of the Parties, and only a party that has provided notification by then can continue to use the alternative approach.100 With this addition, the American proposal was accepted.

PRODUCTS The Minamata Convention requires parties not to allow the manufacture, import or export of mercury- added products listed in part I of Annex A after the phase-out date specified for those products, except where an exclusion is specified in the Annex itself or the party has a registered exemption pursuant to Article 6.101 The phase-out date was set as 2020 for all products in the Annex; these include most of the major product groups such as batteries, light bulbs, switches and relays, cosmetics, pesticides, biocides and non-electronic measuring devices. However, the United States could not accept the prohibition of the manufacture, import or export of mercury-added products listed in part I of Annex A of the Convention. It argued that while they are effectively implementing stringent policies to address mercury-containing prod- ucts, it cannot adopt legislation at the national level not allowing the import of such products.102 A compro- mise could be found which was again tailored to the specific legal situation in the United States: in prin- ciple, no party can allow the manufacture, import or export of listed mercury-added products, but a party may, as an alternative, indicate that it will implement different measures or strategies to address listed mercury-containing products.103 Moreover, such a party has to demonstrate that it has already reduced to a de minimis level the manufacture, import and export of the large majority of the listed products; it has to report to the Conference of Parties a description of the measures and strategies; implement measures and strategies for listed products for which a de minimis value has not yet been obtained; and the Con- ference of the Parties will review the process and the effectiveness of these measures.104

Much of the negotiations were centred on whether the Convention should have a list of those products that

were banned (a ‘positive list’) or a general ban with exemptions (a ‘negative list’) or some sort of compro- mise between the two (a ‘hybrid’ approach). The African Group, Norway and Switzerland were the most vocal in advocating the negative list approach, arguing that it would be simple to understand and cover all uses, including future ones. Many countries, including the United States, Canada and several countries in the Asia- Pacific Group, were strongly in favour of the positive list approach, arguing that it would be more practical and easy for countries to implement, that it would be more cost-effective and that a positive list approach would cover most uses of mercury. The GRULAC countries were in favour of the hybrid approach. Japan, Jamaica and Russia proposed a way forward on combining the proposals,105 but ultimately a positive list approach was agreed upon at INC 4. However, there was substantial disagreement on the regulation of dental amalgam, with some countries seeking a future prohibition and others arguing that dental amalgam was still necessary. A compromise solution was found with a separate Annex with a phase-down approach, which suggests a reduction in the use by requiring parties to take at least two of the listed measures.106 The annexes are open to amendment and review. This means that, in the long run, all uses may still be phased out.107

PROCESSES The Convention requires parties to not allow the use of mercury in the processes specified in Annex B by spe- cific dates – namely 2018 for the acetaldehyde process and 2025 for the chlor-alkali process.108 For three other processes, including vinyl chloride monomer (VCM) production, it establishes provisions to reduce the use of mercury.109 The restrictions on VCM production were particularly hard to reach agreement on since the use of mercury in this production is only used in China, and the country was not willing to agree on a fixed phase- out date, but rather sought to make a phase-out depen- dent on a decision of the Conference of the Parties that mercury-free catalysts based on existing processes have become technically and economically feasible.110

Another hard part in the negotiations was setting the phase-out date for the use of mercury in the chlor-alkali production. Since it is a process that is already being phased out internationally, most countries considered that 2025 was unnecessary late. However, Russia insisted on this late phase-out date and it was finally agreed upon at INC 5.

100 Ibid., Article 3.10. 101 Ibid., Article 4.1. See also H. Selin, n. 30 above, at 9–11. 102 Under United States law, in order to adopt regulations prohibiting the manufacture, import or export of a chemical substance like mercury in a product, it has to be shown that the environmental harm from the existing use of the chemical outweighs the cost of such regulation. Because of the many steps already taken to reduce mercury use in the United States, the American delegation was concerned that it would have been impossible to make the necessary findings. 103 Minamata Convention, n. 47 above, Article 4.2. 104 Ibid.

105 See S. Aguilar et al., n. 38 above, at 5. 106 Minamata Convention, n. 47 above, Article 4.3. 107 Ibid., Articles 5.7–5.9. 108 Ibid., Article 5.2. 109 Ibid., Article 5.3. 110 Ibid., Annex B.

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EXEMPTIONS For products and processes, there is the possibility to have a time-limited exemption for the obligations set out in the Annexes for specific products or processes. An exemption can be given for five years and can be renewed once.111 The arrangement follows the model of the Stockholm Convention, but it is much clearer in restricting renewals and specifying that no party may have an exemption in effect at any time after ten years after the phase-out date for a product or process listed in Annex A or B.112 The provisions were important in securing agreement on phase-out dates in that coun- tries knew that they could apply for an exemption if necessary.

ARTISANAL AND SMALL-SCALE GOLD MINING During the negotiations, it became clear that ASGM is the largest source of global atmospheric mercury emis- sions, and there was broad agreement that the new mercury convention should address it. However, while some countries favoured a ban on ASGM, others argued that this sector needs a more subtle approach, including the formalization of the often informal ASGM sector.113

Countries agreed to combine mandatory and voluntary approaches, with the Convention requiring parties where ASGM is more than insignificant to develop and implement national action plans in line with the obli- gations laid out in Annex C.114 These obligations give a clear push to formalize such activities and phase out the worst practices. Although being a very large and socially very complex source of mercury emissions, and action in the area having clear trade and development impli- cations, agreement on the issue was reached at an early stage, at INC 3.115 However, this was only after the issue of banning trade in mercury for the purposes of ASGM was shifted to the discussions on trade. In those discus- sions, it was decided not to include an overall ban on trade, but export of mercury from primary mining and chlor-alkali facilities is not allowed for ASGM.116

EMISSIONS Emissions of mercury to air was a crucial issue in the negotiations.117 This was due to air emissions being a

very large source of total mercury emissions, and the requirements to reduce air emissions would greatly affect the Convention’s ability to protect human health and the environment. At the same time, this was also an area where some countries pushed for greater flexibility as the costs to parties could be high. In particular, developing countries such as China and India were con- cerned that restrictions on mercury emissions from coal-fired power plants could inhibit their economic development. India continued to argue for a voluntary approach well into the negotiations, based on the need to increase coal-based thermal power.118 The mandate of the negotiations contained both of these aspects: it mandated countries to reduce the atmospheric emis- sions of mercury, while maintaining flexibility in that some provisions could allow countries discretion in the implementation of their commitments.119 The provision on emissions was therefore one of the most contentious issues in the negotiations, with the focus being on the level of prescription/flexibility. This also gave rise to a hard debate on whether emissions were to be reduced, eliminated or merely controlled. China and India were the most vocal in seeking emissions to be only con- trolled, whereas most other countries advocated stron- ger language. India and China proposed a ‘menu-order approach’ that would allow countries to fulfil obliga- tions by measures that they would themselves deter- mine in a national implementation plan.120 Others sought clear provisions that BAT/BEP would apply.

In the end, countries agreed that Article 8 would require that emissions of mercury to air be controlled, and be reduced where feasible.121 Source categories are listed in an Annex and include coal-fired power plants, coal-fired industrial boilers, smelting and roasting pro- cesses used in the production of non-ferrous metals, waste incineration facilities and cement clinker produc- tion facilities. For new sources in these categories, parties need to require best available techniques and best environmental practices,122 while for existing sources, parties can choose between five different approaches.123 The compromise was thus one that reflected a flexible approach with regard to existing sources, while the approach of clear binding obligations is reflected for new sources. The obligation to apply BAT/BEP for new sources is very important since, in the long run, all sources will eventually be new sources as existing sources will be closed down over time.

111 Ibid., Articles 6.1 and 6.6. 112 Ibid., Article 6.9. 113 See T. Kantai et al., n. 39 above, at 6 (reflecting the discussion of voluntary versus mandatory approaches, with Switzerland proposing a combination thereof). 114 Minamata Convention, n. 47 above, Article 7.3. See also H. Selin, n. 30 above, at 11–13. 115 See T. Kantai et al., n. 39 above, at 6. 116 Minamata Convention, n. 47 above, Articles 3.4 and 3.5(b). 117 See also H. Selin, n. 30 above, at 11–13.

118 India’s Views Regarding the Elements of a Comprehensive and Suitable Approach to a Legally Binding Instrument on Mercury, found at: <http://www.unep.org/chemicalsandwaste/Portals/9/Mercury/ Documents/INC2/India%20submission.pdf>. 119 See Decision 25/5, n. 31 above, at paragraphs 27(e) and 28 (a). 120 See M. Ashton et al., n. 56 above, at 8–9. 121 Minamata Convention, n. 47 above, Article 8.1. 122 Ibid., Article 8.4. 123 Ibid., Article 8.5.

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RELEASES The release of mercury to water was not explicitly rec- ognized as an issue in the negotiations, and there was much discussion on whether there was a need for a separate provision for it. Some countries, including the United States and Canada, argued that the major sources of releases would be covered in provisions on products and processes, storage and waste, and ASGM.124 However, especially for the Latin American group of countries it was highly important to address releases into water in a separate provision. Countries eventually agreed that a specific provision should address releases to water from sources not covered by other provisions.125 Like emissions to air, releases of mercury to water are to be controlled, and reduced where feasible.126 However, there is no annex identify- ing source categories; those not addressed in other pro- visions will need to be identified by parties.127 Releases are to be reduced using one or several different mea- sures, including BAT/BEP.128 This mirrors the approach taken with respect to existing sources for atmospheric emissions.

STORAGE, WASTE AND CONTAMINATED SITES The Convention establishes obligations for parties for the sound management of mercury waste, for storage and for contaminated sites.129 Interim storage of mercury and mercury compounds has to be under- taken in an environmentally sound manner, based on guidelines to be developed taking into account rel- evant guidelines under the Basel Convention.130

Mercury can only be recycled for allowed uses under the Convention, and transport needs to be in line with provisions of the Basel Convention. Furthermore, parties are encouraged to develop strategies to identify and assess sites contaminated by mercury or mercury compounds.131 The waste and storage provision was relatively uncontroversial and was not linked to any other provisions. However, Chile’s concern that mercury from byproducts of mining might be directly covered by the waste definition needed to be resolved by mentioning specifically that such byproducts are excluded.132

FINANCE The Convention states that each party, within its capa- bilities, undertakes to provide resources for national activities that are intended to implement this Conven- tion.133 These resources may include domestic funding through relevant policies, development strategies and national budgets, bilateral and multilateral funding, and private sector involvement.134 This is a surprisingly modern approach to financing as it underlines that as a starting point, it is the responsibility of each party to provide resources for the implementation of the Convention.

Furthermore, a mechanism for external financial resources was established that includes the Global Environment Facility (GEF) and a specific programme to support capacity-building and technical assistance in developing country parties and parties with economies in transition.135 Parties also need to cooperate to provide capacity-building and technical assistance to developing country parties and parties with economies in transition.136 This includes the development, transfer and diffusion of, and access to, up-to-date environmen- tally sound alternative technologies for developing countries.

The negotiations on finance were difficult as there were opposing views on the model of the financial mecha- nism.137 In general, most developing countries pre- ferred a new freestanding financial mechanism, following the model of the Montreal Protocol’s Multi- lateral Fund, for several reasons: the model was seen as more responsive to the parties; it was deemed to be efficient; it had a proven track record in financing work under the Montreal Protocol; and it could better support institutional strengthening in developing coun- tries through supporting specific organizational units in the national administrations dedicated to fulfilling obli- gations under the Protocol. The industrialized countries sought to include such a mechanism under the GEF, arguing that the GEF was the instrument that would best serve the purpose, it had proven experience as the financial mechanism for the Stockholm Convention and it would be able to link efforts on mercury with efforts in other environmental treaties. Moreover, proponents of the GEF as the financial mechanism argued that the creation of new financial mechanisms when there already are existing ones should be avoided. The idea of supporting organizational units in national administra- tions was also seen as problematic by several donor

124 See P.M. Kohler et al., n. 40 above, at 12. 125 Minamata Convention, n. 47 above, Article 9. 126 Ibid., Article 9.1. 127 Ibid., Article 9.3. 128 Ibid., Article 9.5. 129 Ibid., Articles 10, 11 and 12 130 Ibid., Articles 10.2 and 10.3. 131 Ibid., Article 13.1. 132 Ibid., Article 11.2.

133 Ibid., Article 13.1. 134 Ibid. 135 Ibid., Article 13.5. 136 Ibid., Article 14.1. 137 See also H. Selin, n. 30 above, at 14–15.

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countries, while others (e.g., Switzerland) supported the idea. In the last stage, the discussions in the contact group on financial resources focused on compromises where having the GEF as part of the financial mecha- nism was combined with an additional ‘specific inter- national Programme to support capacity-building and technical assistance’.138 Thus, units were not referred to explicitly in the final text, but ‘capacity-building and technical assistance’ was generally seen as possibly including the concept of units. This solution was in the end linked to other issues under the Convention, such as the preamble and the provisions on compliance.139

COMPLIANCE The mandate for negotiating the mercury convention specified that it should include provisions addressing compliance,140 which is a very contentious issue. In fact, efforts to date to agree on a compliance mechanism within the Rotterdam and Stockholm Conventions have not succeeded, despite their very clear mandate that a compliance mechanism should be established. Devel- oped countries and many developing countries, includ- ing the EU, Switzerland, Norway, the United States, Canada and the African Group, argued that it was important to reach agreement on all main elements of a compliance mechanism, that the provisions on compli- ance and financing should be developed and adopted in parallel, and that the compliance committee should be established directly in the Convention text. China and Chile, however, supported by others, favoured a similar approach to the one taken by the other chemicals con- ventions, which merely include an enabling clause instructing the Conference of the Parties to develop and adopt a compliance mechanism after its entry into force. India even favoured a voluntary compliance mechanism – a concept that seems to be contrary to the idea of the requirement to comply with legally binding obligations of international conventions.141 While the proponents of a compliance mechanism signalled that they would not be ready to move faster on finance than on compliance, those favouring a weak outcome on compliance argued that a compliance mechanism could only be established once financial support was ensured.

During the negotiations, China, India, Brazil and Cuba argued against having only a compliance or implemen- tation committee, but proposed instead one or more committees on financial assistance, technical support,

capacity-building and implementation.142 This effort to dilute the focus on compliance and implementation did not receive sufficient support, however. At the end of INC 4, there was broad agreement that the compliance and implementation mechanism should be supportive, facilitative, non-punitive and non-confrontational, but no agreement was achieved on whether the mechanism should be established directly by the Convention or by the first Conference of the Parties, and views diverged with regard to the trigger of a compliance mechanism, composition of a compliance committee and decision making. Moreover, during INC 5, China argued that the implementation difficulties of a developing country party should not be regarded as non-compliance if they are due to failure to have full access to adequate finan- cial support in a timely manner. Developed countries, however, stressed that compliance should not be differentiated between developed and developing countries.143

Agreement was reached only on the last day of the negotiations as part of a final compromise package. It was agreed that the Convention establishes the imple- mentation and compliance mechanism, including a committee, to review compliance with all provisions of the Convention.144 This mechanism shall be facilita- tive in nature and pay particular attention to the respective national capabilities and circumstances of parties.145 The committee, consisting of 15 members, shall examine both individual and systemic issues of implementation and compliance and make recommen- dations to the Conference of the Parties.146 The com- mittee may consider issues based on submissions of parties, on national reports and at the request from the Conference of the Parties.147 As the national reports have to be submitted through the Secretariat to the Conference of the Parties, the competence to consider issues based on national reports is de facto a Secretariat trigger. Finally, the committee can take decisions by a three-quarters majority if no consensus can be reached.148

In light of the impasse within the Rotterdam and Stock- holm Conventions with regard to the establishment of a compliance or implementation committee, the agree- ment achieved for the Minamata Convention can be seen as groundbreaking and very progressive. Many have hoped after INC 5 that this positive outcome of the mercury negotiations would stimulate the Stockholm and Rotterdam Conventions to reach a similar agree- ment on compliance at their subsequent meeting of the Conference of the Parties. However, this hope proved to138 Minamata Convention, n. 47 above, Articles 13.6(b) and 13.9.

139 See P.M. Kohler et al., n. 40 above, at 4. 140 See Decision 25/5, n. 31 above, at paragraph 27(i). On the history of the compliance mechanism of the Convention, see also J. Templeton and P. Kohler, ‘Implementation and Compliance under the Minamata Convention on Mercury’, 23:2 Review of European, Com- parative and International Environmental Law (2014). 141 See M. Ashton et al., n. 56 above, at 5–6, 12; M. Ashton et al., n. 41 above, at 10; T. Kantai et al. n. 39 above, at 9.

142 See S. Aguilar et al., n. 38 above, at 9–10. 143 See P.M. Kohler et al., n. 40 above, at 17. 144 Minamata Convention, n. 47 above, Article 15.1. 145 Ibid. 146 Ibid., Articles 15.2–15.3. 147 Ibid., Article 15.4 148 Ibid., Article 15.6.

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be too optimistic and as of today, the two conventions have still not been able to establish their compliance mechanisms.

HEALTH Article 16 on health encourages parties to develop and implement strategies and programmes to identify and protect vulnerable populations. Although the provi- sions are not detailed, the health provision played a significant role in the negotiations. The Latin American countries in particular were very clear that health provisions needed to be included in the Convention, and having a separate provision was important for reaching a final agreement. It was also important to find a solution that did not have financial implications. The general wording of Article 16 fully reflects these concerns.

STANDARD PROVISIONS Most standard provisions did not raise difficulties during the negotiations. The Convention stipulates that parties should: facilitate the exchange of information concerning mercury;149 promote and facilitate public information, education and awareness related to the effects of mercury and on alternatives;150 and cooperate to develop and improve, among others, inventories, modelling, impact assessments, information on alter- natives and on BAT/BEP.151 Another provision deals with the optional development of implementation plans.152 In terms of reporting and review, each party has to report on the implementation of the Conven- tion,153 and the Conference of the Parties is to evaluate the effectiveness of the Convention no later than six years after it enters into force and periodically thereaf- ter.154 Finally, there is a range of standard provisions on: establishing the treaty bodies (Conference of the Parties and Secretariat); dispute settlement; amend- ments to the Convention and its annexes; the right to vote; signature; ratification; acceptance; approval or accession; entry into force; reservations (which are not allowed); withdrawal; the depositary; and authentic texts.155

CONCLUSIONS

The international community identified mercury as a global risk that warranted international action. The sci-

entific basis was clear, and it was clear that the issue was of global importance. While it took some time to agree upon a mandate for the new convention, negoti- ating its outcome took less than four years. The adop- tion of the Minamata Convention was seen as a milestone for chemical safety and the environment, as a groundbreaking treaty addressing a substance through- out its life cycle, and as proof that multilateralism can work.156

The reason for its success lies in there being a clear global risk, and no country argued against the need for global action to address it. In the beginning, there was a dedicated group of countries pushing for a legally binding instrument, ensuring that the option was not off the table even if immediate agreement was not achieved. Norway and Switzerland were the leading countries in proposing a new legally binding instru- ment in 2003, but many other countries soon joined the call. The notable change in position by the United States was the decisive turning point. For developing countries, realizing that they would have to deal with mercury nationally, there was interest to cooperate internationally to support this work. For developed countries, international cooperation to address the rising emissions and releases in developing countries was seen as vital. All in all, there were clear incentives to promote success.

At a practical level, the process was very well organized and well prepared by UNEP Chemicals. It benefited from regular informal consultations between key actors and from the substantive input from competent insti- tutions such as the World Health Organization and the United Nations Industrial Development Organization, as well as nongovernmental organizations such as the Zero Mercury Working Group and the International POPs Elimination Network. The calm, solution- oriented and clear guidance by the Chair and the wise planning and substantive support by UNEP Chemicals ensured confidence in the process and trust between the negotiators.

The Minamata Convention covers all stages of the life cycle of mercury, from mining to waste management. Although it was the result of very hard negotiations and the bridging of different views, it has clear obli- gations for all countries that will enable a significant global effort to protect human health and the environ- ment from the emissions and releases of mercury. The Minamata Convention follows the model of the Basel, Rotterdam and Stockholm Conventions, and sets out the same basic substantive obligations for all coun- tries, while providing some targeted differentiation and flexibility in specific substantive provisions, as well as provisions to mobilize financial resources for implementation in developing countries.

149 Ibid., Article 17. 150 Ibid., Article 18. 151 Ibid., Article 19. 152 Ibid., Article 20. 153 Ibid., Article 21. 154 Ibid., Article 22. 155 Ibid.. Articles 23–35. 156 See R. de Ferranti et al., n. 46 above, at 2, 9–15.

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Some would have liked to see even stronger obligations. One may argue that it does not provide a strong enough legal obligation on countries to effectively reduce total anthropogenic mercury emissions and releases to the global environment.157 Many of the obligations will depend on further guidance by the Conference of the Parties, and on the political priority to follow up on them.158 Moreover, the obligations set out in the Annexes may be amended. Thus, only the future will show if the Convention will live up to expectations and sufficiently reduce mercury emissions and releases to the environment.

Henrik Hallgrim Eriksen is Senior Adviser with the Divi- sion for Marine Management and Pollution Control of the Norwegian Ministry of Climate and Environment. He holds a Master of Economics degree (Cand. Oecon) from the University of Oslo.

Franz Xaver Perrez is Ambassador and Head of the Inter- national Affairs Division of Switzerland’s Federal Office for the Environment. He holds a J.S.D. and an LL.M. from the New York University School of Law, and is an attorney at law in Bern. Dr Perrez teaches international environmental law at the University of Bern School of Law.

The authors have been actively involved in the negotia- tions of the Minamata Convention as lead negotiators of the Norwegian and the Swiss delegations, respectively, and in 2003 they tabled the first proposal for a legally binding instrument on mercury. They are grateful for the critical comments from David O. Buchholz, Gabi Eigenmann, Atle Fretheim, Bettina Hitzfeld and John Whitelaw. The views and ideas formulated in this contri- bution are not those of the Norwegian or Swiss govern- ments, but reflect those of the authors.

157 See P.M. Kohler et al., n. 40 above, at 15; IPEN, n. 54 above, at 1. 158 See also H. Selin, n. 30 above, at 16.

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