By Nigel Bankes
Comprehensive international regulation of persistent organic pollutants (POPs) will involve measures to control, reduce, or eliminate their production, use, trade, and disposal. Such regulation will have to recognize that POPs exist as manufactured substances, as by-product emissions from industrial processes, and in wastes. Measured against these requirements, current international regulation of POPs is inadequate.
I have three objectives in this paper: first, to assess the limited existing international regulation; second, to provide an account of global and regional steps being taken to negotiate international instruments to provide for the comprehensive regulation of POPs; and, third, to provide a detailed critique of the draft protocol emerging from the regional negotiations under the auspices of the Economic Commission for Europe.
Existing Regulation of POPs
The international instrument that deals most specifically with the problem of POPs is the Basel Convention on the Control of Transboundary Movement of Hazardous Wastes and their Disposal. This convention establishes the principle of prior informed consent (PIC) of the importer of hazardous waste before transboundary movement of the waste and contains obligations relevant to domestic waste management. The convention requires states to minimize the generation of hazardous waste and to ensure the availability of adequate disposal facilities for the environmentally sound management of hazardous wastes to minimize the consequences for human health and the environment.
It is important to note that the Basel Convention applies only to "waste," which it defines as "substances or objects which are disposed of or are intended to be disposed of or are required to be disposed of by the provisions of national law." It is evident therefore that the Basel Convention supplies but a small part of a necessary regulatory regime for POPs.
In addition to the Basel Convention, a complete survey of international instruments relevant to POPs would include the environmental provisions of the Law of the Sea Convention especially those dealing with land-based marine pollution, and provisions in regional seas agreements that require the parties to take steps to reduce or phase out toxic substances. Regional seas agreements relevant to the Arctic include the not-yet-in-force Convention for the Protection of the Marine Environment of the North-East Atlantic. It bears emphasizing that there is no similar regional seas agreement among the Arctic states covering the Arctic Basin, although there is an initiative under way to develop a Regional Programme of Action for the Protection of the Arctic Marine Environment (PAME) from Land-based Activities. This initiative is occurring under the auspices of the working group on PAME established by the Arctic Monitoring and Assessment Programme (AMAP). The programme will also serve as a regional component of the Global Programme of Action adopted at the Washington Intergovernmental Conference in November 1995. The newly established Arctic Council could usefully consider whether the proposed Regional Programme of Action is an adequate measure or whether it should be supplemented by a regional convention.
Proposed Global Measures to Regulate POPs
States are currently developing more comprehensive measures to regulate POPs in two categories: an appropriate global instrument under the auspices of the United Nations Environment Programme (UNEP) and regional measures under the auspices of the United Nations (UN) Economic Commission for Europe (ECE). The ECE negotiations are well advanced and will likely serve as a model for a global instrument. A global instrument is equally important for Arctic Canada, as it is undoubtedly the case that a significant portion of the contaminants deposited in the high latitudes has its source outside the ECE region.
Global Measures: UNEP
In February 1997 the Governing Council of UNEP decided to initiate immediate international action "to protect human health and the environment through measures which will reduce and/or eliminate ... the emission and discharges" of 12 listed POPs. It is anticipated that these global negotiations will commence in summer 1998. The UNEP decision to develop a legally binding global agreement follows its consideration of a report from the Intergovernmental Forum on Chemical Safety (IFCS). I welcome both the IFCS report and the UNEP decision that parallels it so closely, but I am concerned that neither document specifically refers to the Arctic, the polar regions, or the special challenges facing indigenous peoples, all notwithstanding the body of evidence demonstrating the systematic migration of POPs to cooler latitudes. For example, while both documents address possible human health and socio-economic effects of POPs, the comments deal with the potential effects of phasing out POPs (especially those used in food production and as vector control agents) and do not recognize the socio-economic impacts for indigenous peoples who may need to consider altering diet and lifestyle as a result of contaminated food sources.
I suggest therefore that the challenge for Canada and other Arctic states is to ensure that Arctic concerns and the interests of indigenous peoples are front and centre on the global POPs agenda. I provide specific recommendations in the concluding section.
Regional Measures: The Role of the Economic Commission for Europe
Readers unfamiliar with the profligate use of acronyms in this area of international environmental law should pause for a moment to grasp the role of the Economic Commission for Europe (ECE). It should not be confused with the European Community (the EC or its earlier manifestations, the EEC or the Common Market). It is not a regional economic integration organization or a free trade zone and, most important of all, its membership is not confined to Europe.
The ECE was one of a number of similar regional organizations established after World War II to deal with post-war reconstruction and co-operation. Its current membership includes not only western and southern European countries but also Canada, the United States, Russia, and other eastern European states.
The ECE emerged during the thawing of cold war politics when it assumed a leading role in facilitating environmental co-operation between western and soviet block countries in the mid-1970s. This led directly to the negotiation of one of the first so-called "framework environmental agreements," the Convention on Long-range Transboundary Air Pollution (LRTAP). The LRTAP was long on grand talk about reducing air pollution and short on concrete commitments, but it did establish an institutional structure for ongoing co-operation (the Executive Body) that has paid exceptional dividends through the last two decades in the form of a series of protocols dealing with various aspects of the long-range transboundary transport of air pollutants. These include two protocols on sulphur dioxide, one protocol on nitrogen oxides, one on volatile organic compounds, and one dealing with the financing of the Cooperative Programme for Monitoring and Evaluation (EMEP) of LRTAP. The EMEP is of special significance here because it provided the model for the parallel Arctic Monitoring and Assessment Programme (AMAP) established as part of the Rovaniemi initiative. Those programmes (and their national counterparts) have been instrumental in helping to develop the scientific record to justify negotiation of the various protocols.
I think it is fair to say that, until the last few years, the ECE's agenda and its priorities for negotiating protocols have been driven in large part by the European metropolitan centres and not by the concerns of the Arctic periphery. The problems of smog and acid precipitation loom larger in Europe than do the problems of contaminants in Arctic food chains. The feedback link between energy generation and respiratory problems is clearer. Canadians shared common cause with Germany and the Nordic countries in pressing for the development of the sulphur dioxide and nitrogen oxides protocols, but we can safely assume that acid precipitation would not have been high on the agenda for the ECE without German interest in the topic.
Hence, it was a cause for some celebration m 1989 when Canada and Sweden succeeded in persuading the executive body to establish a Task Force on POPs. In 1994, following the practice established for previous protocols, the parties to LRTAP agreed to establish an Ad Hoc Preparatory Working Group on POPs with the goal of preparing a draft protocol that would form the basis for further negotiations.
The first negotiating session was held January 20-24, 1997. The text is far from final and much remains square-bracketed (i.e., not-yet-agreed-to) with alternative versions of basic obligations. Following is a thumb-nail sketch of the draft as it emerged from the second negotiating session.
The substances scheduled for elimination and listed in Annex A are aldrin; chlordane; DDT; dieldrin; endrin, hexabrombiphenyl; hexachlorobenzene; mirex; toxaphene; chlordecone; heptachlor; and PCBs. Discussions continue with respect to moving short-chain chlorinated paraffins (SCCP), lindane, and pentachlorophenol (PCP) to the Annex A list from Annex B where, with chlordecone, they are currently scheduled for restrictions on use. In addition to these two annexes, there will be an additional annex (now labelled Annex E), which will provide annual emission levels for three groups of substances that are produced as by-products to other industrial processes polyaromatic hydrocarbons (PAHs), dioxins, and furans.
The Basic and Other Obligations
The basic obligations of the parties, stipulated in draft Article 2, are three-fold: to eliminate the production and use of Annex A substances; to restrict the use of Annex B substances; and to take effective measures to stabilize or reduce emissions of Annex E substances. The base year for Annex E obligations remains square-bracketed. In addition to the basic Article 2 obligations, parties are expected to adopt national strategies and programmes, maintain inventory information for emissions, sales, and consumption of listed substances, handle wastes in an environmentally sound manner, and endeavour to encourage use of the best available techniques with respect to all aspects of the use of POPs.
Further measures to restrict trade in POPs and to use trade measures to enforce the protocol remain square-bracketed.
As is typical with similar international instruments, parties will undertake a variety of procedural obligations including exchanging information and technology, providing for public awareness and information (Article 3) (but only to the extent consistent with national laws and regulations), and meeting reporting requirements (Article 5). As well, there are provisions dealing with research development and monitoring. Text dealing with compliance monitoring and reviews by the parties through the Executive Body continues to be square-bracketed (articles 7 and 8).
Essential Use Exemption and Amendments
Article 13 contains a list of exemptions. Some of its language is narrow and deals with specific use and time-limited exceptions, but the article also contains square-bracketed text allowing an exemption where "no alternative to the substance exists for the proposed use."
Article 11 deals with the procedure for amending the protocol and adding substances to the annexes and needs to be read in conjunction with Annex J, which provides square-bracketed text on the information that a party must submit in support of a claim to add substances to the annexes. I offer some comment on this process in the concluding section.
Criticisms and Recommendations
The objective of this protocol is to protect the environment and human health from the adverse effects of persistent organic pollutants subject to long-range transboundary atmospheric transport by taking measures, consistent with the precautionary principle, to control, reduce, or eliminate their discharge, emission, and loss.
Cognizant of the particular and immediate threat posed by persistent organic pollutants to the physical and cultural well-being of indigenous peoples and others who are dependent on the harvest of country foods, and taking account of the special responsibility of states for indigenous peoples and the need for urgent action....
Recognizing that many persistent organic pollutants migrate to the Arctic, where they deposit and accumulate in Arctic terrestrial and aquatic ecosystems....
Acknowledging that Arctic ecosystems are especially vulnerable to the serious threat posed by persistent organic pollutants, which have been shown to biomagnify and bioaccumulate in the lipid-rich tissues of high trophic level Arctic organisms....
Nigel Bankes is a Professor of Law, Faculty of Law, University of Calgary.