Steps towards the International Regulation of POPs

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. 

Substances Covered 

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. 

Procedural Requirements 

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 

  1. The protocol currently lacks a purposive objectives clause. Under the heading "Scope," the protocol indicates that its aim is "to control, reduce or eliminate discharges, emissions and losses of [POPs] which Parties deem [may] cause [significant] adverse effects on the environment or human health as a result of their long-range transboundary atmospheric transport." What this article lacks is a statement of an ultimate objective such as the protection of humans and components of the environment, especially upper trophic levels, from the harmful effects of POPs. I suggest that a statement of the ultimate objective of the protocol will be a useful criterion against which to measure proposed additions to the protocol and annexes. As well, the drafters have failed to incorporate fully the precautionary principle in the operative articles of the protocol. Although the precautionary principle is referred to in the draft preamble and there is related square-bracketed text in Annex J dealing with the information required to support the addition of substances to Annex A, this is surely inadequate incorporation of the principle in a protocol designed to deal with substances that pose such a serious risk to human health and the environment. A possible statement to incorporate both ideas follows:
    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. 
  2. The scope of the exemptions clause is too broad. Some of the square-bracketed text of Article 13 permits a very broad range of "essential use exemptions." Given the human health concerns related to the use of these substances, these limitations should be more narrowly framed. 
  3. Many of the procedural information exchange obligations listed in Article 3 are limited by the extent to which they are consistent with national laws, regulations, and practices. I think that the drafters need to examine this section carefully to ascertain which of these obligations really need to be subject to this caveat to protect national autonomy and flexibility and which should be simply prescriptive international norms. 
  4. The draft protocol contains no recognition of the special threat posed by POPs to the lifestyles and cultures of indigenous peoples in Canada and elsewhere within the circumpolar world. In my view, one of the goals of this protocol, and the one vitally important measure of its success, will be the extent to which it affords protection to those peoples and cultures. The language of the protocol should recognize that reality. Inclusion of the foregoing suggested objectives clause would help achieve this, but one might also provide expressly in the preamble as follows.
    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.... 
  5. The protocol does contain a somewhat passing preambular reference to the Arctic but this hardly seems adequate for two reasons. First, there is firm scientific support for the view that cold climates are especially affected by long-range transport and deposition of POPs. Second, it treats the Arctic as if it were an area outside the UN/ECE region—a linguistic treatment that encourages the metropolitan centres to discount the importance of the region and its concern. By adding clauses such as the following to the preamble, it would be possible to raise the profile of the Arctic.
    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.... 
  6. References in the protocol to the regulation of trade in POPs and to the use of trade measures to enforce protocol obligations are currently square-bracketed because of concerns about their consistency with trade rules. This is too big a topic to canvass here, but I would urge that we "push the envelope" a little by making maximum use of existing exceptions in international trade instruments for the protection of public health and the conservation of natural resources. I also think that we should anticipate interpretive developments in multilateral trade instruments and support those who argue that we need to adopt some proportionality justification when balancing the environmental threats the POPs protocol will combat against the trade impairment effects of proposed measures.  
  7. The procedure for adding new substances to Annex A remains contentious. All agree that proposals for adding new substances should be science-based (i.e., there should be an adequate record that speaks to essential criteria including persistence, bioaccumulation, exposure, and long-range transport, but views differ on whether proposals should also provide information on other matters including the socio-economic effects of imposing a ban but not the socio-economic effects of making country food a danger to health! I would argue that Canada's position should be driven by its obligation to protect its indigenous peoples and to implement the precautionary principle and that therefore Canada should resist the temptation to add political or technical hurdles to the listing process. I also think that there may be merit in allowing non-state parties to initiate the listing process. An expanded list of possible initiators might include NGOs, international indigenous peoples' organizations like the Inuit Circumpolar Conference, and other international organizations.  
  8. Canada should urge the Arctic Council to assess the need for, and value of, a regional seas agreement among Arctic basin states to deal, inter alia, with all sources of land-based marine pollution including POPs. As noted, this would go beyond the existing proposals to develop a Regional Programme of Action.
  9. Canada should take steps to ensure that Arctic concerns and the concerns of indigenous peoples are front and centre on the global agenda for the UNEP-led POPs negotiations. Among several options, Canada could include representatives of indigenous peoples within its delegation. The delegation sent by Canada to the Rio meetings in 1992 sets a precedent for this sort of involvement. Alternatively, Canada could provide financial and other support to an international coalition of indigenous peoples to assist their independent participation as an NGO observer.

 

Nigel Bankes is a Professor of Law, Faculty of Law, University of Calgary.

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