Looking back to CoP1 of UN Minamata Convention as new EU Regulation 2017/852 enters force
The 1st January 2018 is a significant date not only as the start of a new year. Today also sees the entry into force of the new and awaited EU Mercury Regulation 2017/852. LivingLaw's @erikasolimeo takes this opportunity to look back on key highlights from CoP-1 of the UN Minamata Convention, to which LivingLaw is an Official Observer, and asks the question of whether progress is being made fast enough to tackle this lethal and toxic killer.
The recently concluded and historic First Conference of the Parties (COP-1) of the Minamata Convention on Mercury, held in Geneva between the 24th and 29th September 2017, represents the first key milestone for State Parties to effectively realise the aims of the Convention through institutional and administrative arrangements.
Several key achievements were reached during the first CoP of this revolutionary treaty, which is often hailed as being "the first multilateral agreement on the protection of both human health and the environment of the 21st century”. In this mini-briefing, we look back at some of the main achievements reached at the end of the first CoP, as well as highlighting some key areas where further action is required.
During CoP-1, one of the main aspects of debate was the negotiation in relation to the Secretariat arrangements, which represents a fundamental pillar in the effectiveness of any multilateral environmental treaty, such as the Minamata Convention. Two particular aspects were the subject of decision-making and debate: i) the permanent location of the Secretariat; and ii) the eventual integration of the Minamata Convention Secretariat with other secretariats hosted in the other chemicals and wastes treaties.
The majority of State Parties (and especially developing countries) supported Switzerland’s proposal to accommodate the Permanent Secretariat in Geneva. Moreover, the partial integration with other Secretariats was considered to be necessary to assure a better alignment of the respective work programmes.
However, a few States parties (including, Canada and China) promoted by the US, strongly opposed any form of integration, while endorsing a different location. The reasons for such an objection were likely due to the fact that the US is not a State Party to any of the other chemicals and wastes conventions (i.e. the Basel Convention, Stockholm Convention and Rotterdam Convention), all of which see their Secretariats in Geneva. Therefore, the US was likely concerned that having the Permanent Secretariat of the Minamata Convention located in Geneva would result in it being drawn more closely into the work programmes of those family of Conventions; something which it heavily resists.
The delicate compromise reached at COP-1 (following several hours of discussions in the Committee of Whole (CoW), Friends of the Chair Group and even informal consultations in order to facilitate the realisation of an agreement), was a slight 'fudging' which essentially postpones these key decisions to the next Conference of the Parties (CoP-2) whilst presenting that an agreement had been reached.
In the time between CoP-1 and CoP-2, the Executive Director of the United Nations Environment Programme (UNEP) is asked to continue to perform the functions of the Interim secretariat from Geneva, considered as a stand-alone secretariat but heavily relying on the other chemicals and wastes treaties secretariats for some operational aspects.
It goes without saying that this kind of non-decision fueled by self (rather than truly common) interests not only delays the implementation of the Minamata Convention in terms of efficiency. But it also precludes good guidance in the delegates’ inter-sessional works and may have numerous practical ramifications (such as in the employment of staff, development of work programmes etc) which may be challenging and hamper or deflect from the Convention's real work.
THE PRESENCE OF SHINOBU SAKAMOTO DURING 'A MOMENT TO MINAMATA' - A POINTED REMINDER OF THE CONSEQUENCES OF MERCURY FOR THE UNBORN CHILD
The clear intention shared by all State Parties to the Minamata Convention is to learn from past disasters. Most noteably, the lethal mercury contamination of the Minamata Bay in Japan in the 1960s from which the Convention takes its name and serves (rightly) as an ongoing and unforgettable reminder of.
Throughout CoP-1 there was an emphasis on the need for greater protection of infants and unborn children. Shinobu Sakamoto, as one of the remaining survivors of Minamata disease, made a pointed plea to delegates not to allow mercury pollution anymore. The need to protect women and children through state cooperation were central aspects of her speech, held in “a Moment to Minamata” event (28th September). In the name of the several Minamata disease victims, who, like her, illustrate that mercury effects on human health have never ended, her plea to the delegates was to “take action as if you were walking in the victims’ shoes”.
INDIGENOUS PEOPLE AND THE CASE OF KIRIBATI POPULATION: AN EXAMPLE OF INTRA- & INTER-GENERATIONAL INEQUITY
During the CoP, specific consideration was paid by delegates to health rights of indigenous communities, through the consideration of the whole lifecycle of mercury - from its supply, management and trade.
Among indigenous people affected the most by mercury contamination, the Inuit and Kiribati populations deserve a specific mention. According to the 2017 study on mercury levels in women of child-bearing age (18-44 years old) undertaken by IPEN and the Biodiversity Research Institute, the Kiribati islands, situated in the Southwest Pacific Ocean, were defined as the country with one of the most serious levels of mercury contamination.
Despite having no sources of mercury on Kiribati, 100% of the women are found to have levels of mercury in their hair above the 1ppm, which is equivalent to the US EPA's maximum tolerable daily mercury intake over which damage to brain, heart and kidney may occur. This shocking result raises key issues of equity and demonstrates the levels of toxic chemical exposure from seafood and the detrimental health consequences that mercury contamination is still having for indigenous communities and populations who rely heavily on fish for their way of life.
This recent report, developed to support the monitoring efforts for the Minamata Convention on Mercury, follows a previous specific monitoring report on mercury in the Pacific Region, where similar outcomes were reached. It is finally important to mention that, in a similar way as the US EPA, also the WHO only refer to acceptable or tolerable intake of mercury, lacking assurance of a strong level of human health protection.
The consideration that the health rights of indigenous communities are mostly undermined by mercury pollution, as a consequence of fish-rich diets, was stressed by many COP-1 delegates, while reiterating the importance of their traditional knowledge, as an effective tool to combat mercury utilisation. At the same time the High-Level Segment recognised as key 'Take-Home Messages', the need for a massive inclusion of all sectors and stakeholders in the implementation of mercury policies, together with encouragement for education initiatives and alternatives to illegal practices.
DEBATE ABOUT REPORTING REQUIREMENTS
Although most of the victories fulfilled in the text of the Minamata Convention resulted in the choice to refer to patterns and mechanisms included in other chemicals and wastes Multilateral Agreements (Basel Convention, Rotterdam Convention and Stockholm Conventions), the effective cooperation and coordination with other treaties represented at the same time one of the main difficulties that delegates had to deal with in COP-1. In other words, as it will be explained below, the First CoP proved to be, for many of the topics of debate, the arena where Parties regrettably fostered socio-economic interests, rather than pursuing broadly accepted concepts of common interests.
As expressly required by Article 21 of the Convention, the First CoParties debated the timing and format of the reporting that the Parties have periodically to submit to track implementation. Both of the mentioned issues (which according to the text of the Minamata Convention, should be in line with other chemical and waste treaties) were followed by deep contrasts among States. Starting with the former, an agreement was finally found in a double set of time-frames: States Parties shall provide full reports every four years (starting from 2021) and biennial partial reports for specific information, such as trade, waste and supply sources (starting from 2019). Although a compromise was reached, it is important to interpret this decision in light of the recent data published in the 2017 UNEP Report, which highlights a sharp increase of mercury used in mining, as a result of widespread and illegal mercury trade, in comparison with ten years ago. This aspect, together with the fact that this toxic resource can be easily transported across national borders, leads to the conclusion that non-immediate reports may foster those kinds of markets.
More conflictual was the debate about the type of information which needs to be included in periodical reports, as some delegates suggested expanding the text of the Convention while admitting additional data. The solution agreed by CoP-1 delegates was the adoption of initial information guidelines, as formally requested by the Minamata Convention, with reference to mercury emissions (Article 8), management of contaminated sites (Article 12) and sources of mercury supply (Article 3). Only for mercury waste thresholds (Article 11) the first CoP admitted the nomination of an expert group in charge of identifying the type of waste included in the reports, in line with technical guidelines adopted in the Basel Convention. On the other hand, no initial guidance, which is necessary to allow the Secretariat to rely on comprehensive data collection, was assented with reference to sound interim storage of mercury and trade in mercury compounds, where delegates decided to postpone their revision and re-examination to the next CoP.
Specific attention was also paid to Artisanal and small-scale gold mining (ASGM). Given that this practice is responsible for some 60% of all global mercury demand, delegates agreed on the preparation of National Action Plans, in coordination with the guidelines set by the World Health Organisation. The real challenges that Parties have yet to tackle is the lack of available and reliable data about those examples of bad practice, as most of them are part of an illegal (and, therefore, not traced market). On top of that, the differentiated standard of reduction allowed for each State Party (in line with its own National Action Plan) and the relatively long term to start monitoring the progress (three years after the entry into force of the Convention to first complete the plan and a further three years before verifying the progress), put some doubts on a decisive implementation. This statement is then further strengthened by specific economic interests, which lead parties to overstep health requisites to assure economic benefits.
Following this argument, the debatable decision of the Swiss government to allow exports of mercury dental amalgam until 2027, lays in total contrast with the full export ban of the USA and the European Union and carries numerous critics, especially considering its proposal to host the Secretariat of the Convention in Geneva and associated leadership role.
CAPACITY BUILDING AND TECHNICAL ASSISTANCE
The second aspect of the debate about reports concerned the possibility, mainly endorsed by the Developing States, to introduce also additional information in order to receive assistance and technical support. This appeal, then accepted by the first CoP, can be understood only in conjunction with the discussion relating to Specific International Programme ('SIP'), one of the two financial mechanisms included in the Minamata Convention and aimed at granting technical assistance to States (Article 13).
Even though Parties agreed on creating a Special International Programme Governing Board, in charge of assisting CoP in collecting information and providing guidelines for projects under SIP, high contrasts prevent COP-1 to reach decisions on the number and eligibility requirements of the Board. Deep conflicts also involved the duration of the Trust Fund, where a time-limited duration sought by Developed States was opposed by Developing States, seeking - for evident reasons - for no such time limits. In the final decision, delegates opted for a time-limited and voluntary based fund.
Despite Switzerland contributing one (1) million USD, it is easy to see, once again, how individual State interests can lead to a weak and incomplete foundation of the Minamata Convention’s mechanisms, with the result to delay the effective operationalisation of the SIP.
MERCURY DENTAL AMALGAM
Despite coal-fired power stations and gold mining being traditionally considered as the key/main sources of mercury contamination, especially if considering the informal sector of artisanal and small-scale gold mining in developing countries, not less detrimental are the effects that another but not so well-known practice have on the environment and human health: that is, dental amalgam.
The widespread usage of mercury to restore teeth cavities (almost in 130 States for more than a century) can be understood in its believed durability, cost-effectiveness and ease of manipulation, in comparison with other alternative procedures. But the detrimental effects that mercury dental amalgam has simultaneously impact several areas.
First, numerous researches conclude about its direct effects on human health. On the one hand, mercury concentrations are found in adults’ brains, blood, urine, mainly due to constant inhalation of the toxic metal vapour. Even worse, mercury contamination passed through pregnant women with amalgam dental to their unborn children, resulting in the foetus’ kidney affliction. Moreover, the connection between mercury usage in dentistry and health risk is confirmed by an increasing number of allergic reactions among patients and dental personnel. The impacts that dental amalgam has on the environment can also be profound, especially in waste and water disposal. While solid mercury waste, such as extracted teeth with an amalgam filling, are often (in a global perspective) incinerated together with general refuse, the smallest particles of the toxic substance can reach, through waste-water treatment and sewerage systems into the water environment. It is then easy to understand the serious risk for the marine environment in general, and for fish species specifically, of the so-called “secondary poisoning”, as minor elements of mercury are barely filtered by wastewater treatment. This situation is finally exacerbated by the considerable emission (from 170 to 180 kg) of mercury in the atmosphere by crematoria, where necessary high temperatures and the absence of adequate chimney vaporise the metal from amalgam fillings.
In order to clearly understand this controversial topic, it is necessary to underline the absence of an international legally binding treaty, which imposes a clear time-frame for a complete ban on dental amalgam. If on the one hand it can be argued that the number of regional bans have been increasing recently (Denmark, Sweden, Finland, the Netherland, Japan, and the EU, the latter from 1 July 2018), on the other, the strong opposition by the World Dental Federation (such as, FDI), still refuses to recognise the risks linked to mercury dental amalgam. Moreover, the absence of clear and unambiguous data at present led both the Independent Committee on Health and Environmental Risks ('SCHER') and the Scientific Committee on Emerging and Newly Identified Health Risk ('SCHENIHR') to exclude significant evidence of chronic health effects by mercury. Also, EFSA finally defined the link between mercury and neurological disease, including Alzheimer’s, Parkinson’s, multiple sclerosis as inconclusive and contradictory. However, all the aforementioned scientific institutes agree on the importance of the Precautionary Principle, considering the extreme hazards posed by the chemical, especially for vulnerable people (and, of course, the consequences it may produce in case of worst-case scenarios). These factors, together with the concrete difficulties that developing countries could face in opting for alternative (and, generally, more expensive) dental restoration, guided WHO to encourage a progressive elimination of the practice, rather than a precise time-frame ban. This view definitively results also in Article 4 paragraph 3 of the Minamata Convention, where a precise reference to national circumstances is made in Annex A.
With reference to COP-1 of the Minamata Convention, dental amalgam did not feature prominently among the main topics prominently addressed. With the exception of the 45-minute event held by World Alliance for Mercury-Free Dentistry ('WAMFD') on 24 September and some marginal debate during the thematic session on water, delegates did not approach the topic in the same way as they did for, for example, Artisanal Small Gold Mining. Once again, it appears that much more needs to be done to increase awareness of the impact of dental amalgam. This is an unfortunate example of the ways in which economic interests and lobbying power still tend to prevail over environmental and human health interests, which are mainly affected by still inefficient management of dental amalgam waste.
Another major concern that emerged in the first CoP can be identified in the implementation of financial arrangements, due to individual State interests prevailing over common agreed advantages. Although delegates agreed on the initial guidance on strategies and programme priorities of the Global Environment Facility Trust Fund, identified by the text of the Minamata Convention as the financial mechanism to assist developing countries in their commitments (Article 13), concrete difficulties involved the approval of a Memorandum of Understanding with the Global Environment Facility (GEF) Council. In other words, the agreement on the Memorandum, intended to be as the interim arrangement between the CoP and the GEF Council, was strongly objected to by the accusation of politicization of GEF in funding projects, invoked by Iran and the non-state party of the Russian Federation. The lack of consent led therefore to a postponement of the decision to the next COP.
Following this unclear situation about the effectiveness of GEF funding, as the Memorandum represents one of the core elements of the financial mechanism, an increasing number of developing countries are concerned that they will not have access to the financial resources required to implement their obligations under in the Convention.
Apart from electing the Implementation and Compliance Committee, as specifically mandated by Article 15 of the Convention, the first CoP also dealt with a coordinated implementation of the duties included in the text of the Convention. The High-Level Segment, focusing on the impacts that mercury has on land, air and water, debated the technological and mercury-free innovations, management of strategies and policies integrated with the latest scientific research.
The second relevant aspect about implementation expressly debated at CoP-1, was the agreement reached by delegates on the effectiveness evaluation of the Convention (Article 22). The Parties counter-balanced the vagueness expressed in the disposition about implementation plans (Article 20), with a specific intention to establish an ad-hoc expert group, in charge of assisting the CoP in monitoring data and evaluating the evaluation framework and adopted the draft road map for establishing those arrangements. Despite that among the initial proposals many suggested an extended inclusion also for members of the civil society, the decision of establishing a scientific group represents one of the clearer examples of effective inspiration of precedent chemical treaties (specifically the Stockholm Convention). It is relevant to stress that the ambiguity and relatively long-term deadlines required by the text of the Convention for evaluation (“no later than six years after the day of entry into force of the Convention"), should be considered as a topic of further agreement.
UK AND BREXIT UNCERTAINTY
The importance of cooperation and coordination among States in the implementation of the Minamata Convention, as stressed during the first CoP, played an important role with reference to the currently uncertain future relationship between the UK and the EU and the status of EU Environmental Law in the UK post-Brexit; albeit that the UK Government has indicated that it remains committed to implement and apply EU law in the field of the environment after Brexit.
The European Union has adopted the EU Regulation on Mercury on 17 May 2017 (Regulation (EU) 2017/852) as a central component of its implementation of the Convention. In a UK context, giving full effect to the Regulation however also requires domestic legislation to, for example, set out and define competent authorities for enforcement. Prior to CoP-1, whether the UK Government intended to ratify the Convention in its own right was also uncertain.
In this complicated scenario, the role of Living Law has been of fundamental importance to push the UK Government towards specific, concrete steps and transparency to civil society in terms of its approach. As a UK-based environmental law firm interested, therefore, in the modality of implementation opted by the UK Government, we pride ourselves on having attended the COP-1 of the Minamata Convention, as an official observer (for more details, access the Twitter profile of our Law Firm @Livinglawfirm, or #minamatamea). There, following the active presence of Susan Shaw and her dialogue with the national delegation, UK Minister Therese Coffey formally announced the commitment of the UK Government to ratify the Minamata Convention at the beginning of 2018 and to lay the UK implementing legislation detailing enforcement mechanisms etc in line with the 1 January 2018 date when the EU Regulation enters into force.
Another notable achievement during the COP-1, was given by the initial financial contribution (150,000 US Dollars) that the UK Minister devolved to Specific International Programme (SIP), in addition to its support through GEF.
After COP-1, the first steps were taken by DEFRA. On 23 October 2017 the Government launched a consultation process for the adaptation of Control of Mercury (Enforcement) Regulations 2017 (the "UK Regulations"), in order to discuss an “appropriate and proportionate approach” for the implementation of the 2017 EU Regulation. The consultative discussion, concluded on 21 November, saw the simultaneous participation of Defra Ministers of England, Wales, Scotland and Northern Ireland, together with the main stakeholder groups involved in the mercury market (industries using mercury or dealing with its waste, and dentistry sector). The new UK Regulations are, therefore, now entering into force timeously on 1 January 2018.
As part of its efforts in relation to the Minamata Convention, Living Law will continue to monitor the implementation of the UK Regulations in conjunction with other key stakeholders.
It is undeniable that the effectiveness of the Minamata Convention is directly linked to the speed of elimination of mercury, considering both primary and secondary mercury sources. In order to meet the specific set of deadlines included in the text of the treaty, common agreements on procedural aspects, such as financial mechanisms and secretary arrangements are the basis of a successful triumph of health protection over individual and economic interests. But considering the results obtained at the end of the First CoP, the path still appears to be uncertain. The work has only just begun.
Find Out More
More information is available at the Minamata Convention’s website (http://www.mercuryconvention.org/).
With specific reference to the First Conference of the Parties, we refer those interested in finding out more to the following sources:-
Earth Negotiation Bulletin, 29 September 2017, Vol. 28 No. 46, available at http://enb.iisd.org/mercury/cop1/ ;
Earth Negotiations Bulletin, 2 October 2017, Vol. 28 No. 47, available at http://enb.iisd.org/mercury/cop1/ ;
Efstathia Laina, Working to Ensure Success at CoP-1, published in Environmental Policy and Law Journal, 46/3-4 (2016).
Erika Solimeo, Intern
Energy Transition & Environment