Pending POPs Pact: Environmental Panacea or Parody?

Robin L. Cowling
Merrick Holm
Halifax, Nova Scotia, Canada

Introduction
Under the auspices of the United Nations, the international community is drafting a new chemical management convention aimed at eliminating and reducing the use of persistent organic pollutants ("POPs"). Although the draft convention is nearing completion, critical elements remain outstanding: (i) the nature and extent of technical and financial assistance to be provided to developing states and states with economies in transition; and (ii) the level of global commitment to implement an on-going recognition and elimination of these chemicals.

Back to the Beginning
The international community began to focus its attention on the environmental impacts of toxic chemicals after the adoption of Agenda 21 at the 1992 United Nations Conference on Environment and Development. Chapter 19 of Agenda 21, titled "environmentally sound management of toxic chemicals including prevention of illegal international traffic in toxic and dangerous products," provided the basis for future international efforts. In Agenda 21, the fact that chemicals were essential to meet social and economic goals was recognized but six programme areas were identified for change: an expansion and acceleration of the international assessment of chemical risks, a harmonization of classification and labeling of chemicals; an information exchange on toxic chemicals and chemical risks, the establishment of risk reduction programmes, a strengthening of national capabilities and capacities for management of chemicals, and the prevention of illegal international traffic in toxic and dangerous products.

Attention began to focus on POPs in 1995. POPs are a group of chemicals that share four characteristics: (i) they have a high lipid solubility, which allows them to bioaccumulate; (ii) they are resistant to bio-, photo- and chemical degradation, which allows them to biomagnify in fatty tissue; (iii) they are semi-volatile, which allows them to travel great distances through the atmosphere before deposition; and (iv) they are toxic. The toxicity of POPs has been linked to several health concerns including effects on animal reproduction, development and immunological function.

As a result of the seriousness of the environmental and health risks posed by POPs, governments began to devise international measures to be undertaken to address the risk. These measures include the United Nations Economic Commission for Europe ("UN/ECE") POPs Protocol to the UN/ECE Convention on Long-Range Transboundary Air Pollution, the North American Agreement for Environmental Cooperation – Commission for Environmental Cooperation, and the bilateral United States/Canada agreement to control the discharge or release of POPs in the Great Lakes Basin.

The United Nations also began to move toward the drafting of a convention. In 1995, the United Nations Environment Programme ("UNEP") Governing Council adopted Decision 18/32. This decision invited the Inter-Organization for the Sound Management of Chemicals, and the Intergovernmental Forum on Chemical Safety (both created further to the adoption of Agenda 21) and the International Programme on Chemical Safety to convene and develop a workplan to assess POPs. This Ad Hoc Working Group on POPs was to assess and consolidate existing information on POPs, including: their chemistry and toxicology; their transport pathways, origin, transport and deposition; their sources, benefits, risks and other production and use related factors; an analysis of available substitutes; and a realistic assessment of response strategies, policies, emissions, discharges and losses of POPs.

Subsequent meetings of the Ad Hoc Working Group, together with information gathered by UNEP, governments, and international organizations, resulted in the UNEP Governing Council adopting Decision 19/13C in 1997. This Decision formally recognized the need to develop a global, legally binding instrument to reduce the risks to human health and the environment caused by: (i) pesticides: aldrin, chlordane, DDT, dieldrin, endrin, heptachlor, mirex, and toxaphene; (ii) industrial chemicals: hexachlorobenzene ("HCB") and polychlorinated biphenyls ("PCBs"); and (iii) unintended byproducts: dioxins and furans. To date, four sessions of the POPs Intergovernmental Negotiating Committee ("INC") have already been held. These were held in: Montreal, Canada, in June1998; Nairobi, Kenya, in January 1999; Geneva, Switzerland, in September 1999; and, most recently, Bonn, Germany, in March 2000.

Negotiating the Future
INC4 was held at the Bundeshuis in Bonn, Germany from March 20–25, 2000. It brought together approximately 500 individuals representing 121 nations, United Nations bodies, agencies and convention secretariats (including the Global Environment Facility, World Health Organization, World Trade Organization, and secretariat of the Basel Convention on the Transboundary Movements of Hazardous Wastes and Their Disposal), intergovernmental organizations (including the European Commission, Southern African Development Community and South Pacific Regional Environment Programme) and non-governmental organizations and other bodies (including the Canadian Arctic Indigenous Peoples Against POPs, Center for International Environmental Law, Chemical Manufacturers Association and The Black Sea Community). The general debate at INC4 saw delegates concerned about how to implement financial assistance for states, either through existing bilateral or multilateral mechanisms, such as the Montreal Protocol, or through other means. Developing states also discussed the need for varying compliance times based upon the level of state development, including the recognition of common but differentiated responsibilities. The need for technical assistance was also stressed. Other delegates requested provisions dealing with the transfer of technology to assist with addressing the risk and damage caused by POPs. The need for the inclusion of the precautionary principle, and the need to use caution as a guiding principle, was raised by other delegates.

By the close of INC4, draft provisions had been prepared on several issues, including: measures to reduce or eliminate the use of POPs; national implementation plans; the listing of substances within the Annexes; the exchange of information between the parties; public information, awareness and education; research, development and monitoring; technical assistance; and, financial resources and mechanisms. Of these provisions, those pertaining to measures to reduce or eliminate the use of POPs (Article D), technical assistance (Article J), and financial resources and mechanisms (Article K) were the most controversial. The draft text of these provisions remained largely in bracketed form at the end of INC4, indicating a need for continued consideration and negotiation at INC5.

The controversy surrounding these three provisions can generally be attributed to a few factors. The first is the economic disparity that exists between developed states, developing states and states with economies in transition. Especially evident between developed and developing states, the disparity has historically led to mistrust and polarization. Although this is a topic worthy of greater explanation than can be given here, it can be partially attributed within the environmental context to a developing state perspective that "but for" the economic position of developed states many global environmental issues would not be in existence. In short, developing states want developed states to take ownership of these environmental issues and commit to change in their own backyards before seeking to legislate restrictions on the ability of developing states to develop.

A second related factor is the recognition that environmental measures must be undertaken in light of the economic and institutional capacity of nations. This environmental differential has been recognized internationally from at least as early as 1992, when at the Earth Summit, Principle 11 of the Rio Declaration was drafted to state that environmental standards should reflect the environmental and developmental context to which they apply, noting that standards may be inappropriate and of unwarranted economic and social cost to other states, in particular developing states. Dissension can therefore arise during negotiations when the ability of states to implement the draft terms of the convention is discussed, but inadequate assurances are given for exchanges of financial, technical and information assistance.

Another contributing factor is the lack of an accepted international definition for the "precautionary" approach. Although this term was mentioned in the Rio Declaration, as Principle 15, it has never been given a concise definition. Principle 15 stated that a precautionary approach was to be applied by states in accordance with their capabilities, and that lack of full scientific certainty should not be used as a reason for postponing cost effective measures to prevent environmental degradation, when there were threats of serious or irreversible harm. However, a review of international instruments reveals that the precautionary principle has been defined in many ways. Examples can be found in the Bamako Convention on the Ban of the Import into Africa and the Control of Transboundary Movement and Management of Hazardous Wastes Within Africa, the United Nations Framework Convention on Climate Change and the Paris Convention for the Protection of the Marine Environment of the North-East Atlantic.

Article D: Measures to Reduce or Eliminate Releases, Prohibit Production and Use, and Manage Stockpiles of POPs
Article D, one of the core provisions of the convention, will determine the tone of action to be undertaken by the international community. This article focuses upon existing POPs, providing provisions for both their elimination (POPs listed in Annex A: aldrin, chlordane, DDT, dieldrin, endrin, heptachlor, hexachlorobenzene, mirex, toxaphene and PCBs) and their restriction (POPs listed in Annex B: DDT in regard to vector disease control and PCBs to articles in use). It also provides direction for new chemicals and POPs that are released as by-products (POPs listed in Annex C: dioxins and furans). It additionally addresses disposal of stockpiled POPs.

The draft text reflects concern among delegates over several issues. In reference to POPs marked for elimination, the provision indicates that delegates may "prohibit," "prohibit and take other legal measures," or simply "take legal measures" regarding the production and possibly the import and export of these chemicals. Bracketed text also surrounds a caveat that action would be dependent upon a state’s access to financial and technical assistance. An additional bracketed clause states that after being banned, POPs would only be imported or exported for the purpose of environmentally sound destruction and/or disposal.

The text for POPs listed for restriction is consistent with that drafted for POPs to be eliminated. The draft provision for new chemicals requires parties to have a regulatory and assessment scheme for new pesticides and industrial chemicals. Uncertainty remains whether these schemes are to avoid, prohibit, prevent, or regulate the production and/or import and export of these products, after having determined that they exhibit POPs characteristics.

In regard to POPs generated as by-products of anthropogenic sources, and with the aim of minimizing these sources, parties are to: promote means of release reduction and/or source elimination; promote the use of alternative materials; require the use of best available techniques for new sources; require the use of best available techniques for existing sources; and develop and implement a national action plan designed to identify, characterize and address the release of substances. This provision may be subject to the availability of financial and technical assistance.

Stockpiles of POPs and wastes containing POPs are to be managed in a manner protective of human health and the environment such that each party shall: develop strategies to identify stockpiles of POPs and wastes; and manage the stockpiles and wastes carefully ensuring that they are handled, transported and stored in an environmentally sound manner and managed to destroy the POPs content or to dispose of them in accordance with the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal. This provision may also be narrowed to reflect technical and financial limitations of the parties.

Article J: Technical Assistance
Article J states that the parties recognize that the successful implementation of the convention will be contingent upon the rendering of timely and appropriate technical assistance to developing states and states with economies in transition. Bracketed text can be found with respect to whether developed states shall undertake or only cooperate in this assistance. The nature of technical assistance to be provided shall include: a review of the available infrastructure, capacity and institutions at regional, sub-regional, national and local levels to assess the needs and options for strengthening; a compilation of inventories and release registers; development of national implementation plans; training of decision-makers; strengthening of training and research for the monitoring of releases, reducing use, and implementation of alternatives; facilitation of private sector involvement; and promotion of the transfer of clean and environmentally sound technologies. A clause requiring developed parties to provide assistance for implementation of the convention remains in brackets. An additional bracketed measure provides for the secretariat of the convention to perform a capacity assistance network function with the aim of identifying inventories of sources of technical assistance and requests. It would also assist parties to identify and give advice on the requirements for accessing assistance and foster linkages; maintain a database of expert persons, agencies and organizations on POPs; and facilitate the involvement of the private sector, including non-governmental organizations.

Article K: Financial Resources and Mechanisms
Article K, like Article J, will be critical to the success of the convention. It requires that each party undertake to provide, in accordance with their capabilities, financial support and incentives for national activities that have as an aim the convention’s objective. In bracketed form is a provision that requires developed parties to provide financial assistance to developing states and states with economies in transition. A second bracketed form of this provision requires developed parties, as well as other parties in accordance with their capabilities, to mobilize or provide financial and other resources to developing parties and to parties with economies in transition for the implementation of the convention. The Article also requires the Conference of the Parties to continue to promote the availability of financial and/or other forms of assistance so as to provide for the implementation of the convention.

The draft article contains two proposals with respect to the mechanism that will be used to provide financial support. The first proposal has three alternative texts. The first is akin to the provision in Article J, wherein the secretariat is directed to perform a capacity assistance network function. The second proposes that the Global Environment Facility ("GEF") provide a mechanism for financial support. The third states that financial assistance will be provided by one or more existing international entities, including the GEF, which would undertake the operations of the mechanism and capacity-building assistance network. The second proposal directs that the financial resources be provided through contributions from developed parties. To this end, the Conference of the Parties would establish an independent multilateral fund, consisting of regular and obligatory contributions from developed state parties.

The article contains other draft provisions that contemplate parties accessing financial resources from other bilateral, regional and multilateral sources to assist with the convention’s implementation. In bracketed text, parties are to utilize national sustainable development programmes to ensure efficient use of the available financial resources. The article also provides three alternative texts for review of the effectiveness of the financial mechanism by the Conference of the Parties.

Environmental Panacea or Parody?
Some observers have expressed concern over the ability of the POPs convention as drafted to be harmonized with other chemical and hazardous substance legislation, in particular the Rotterdam Convention on the Prior Informed Consent ("PIC") Procedure for Certain Hazardous Chemicals and Pesticides in International Trade, as adopted on September 10, 1998. The PIC Convention provides a mechanism for the promotion, facilitation and exchange of information about the characteristics of potentially hazardous chemicals and pesticides in international trade. It achieves this through a state decision-making process on the future import of these chemicals and the dissemination of those decisions among the parties.

In 1996, after PIC INC2, there were discussions at the Food and Agricultural Organization Council Meeting surrounding the mandate of the PIC INC. Consideration was given to broadening the mandate to enable the PIC INC to negotiate a framework convention on chemical management that would have encompassed POPs. Delegates were unable to agree and the PIC INC mandate remained unaltered. In 1997, the UNEP Governing Council Decision 19/13D again reiterated the need for enhanced coherence and efficiency among international activities relating to chemicals and specifically mentioned the future POPs convention.

Whether or not delegates will want the POPs convention to mirror the Rotterdam PIC Convention is another issue. The Rotterdam PIC Convention can be criticized for its failure to include the precautionary principle, its scant attention to the need for technical assistance and its failure to address financial assistance for developing states and states with economies in transition. Negotiations at PIC INC6, in July 1999, saw developing states and states with economies in transition continuing to request support for the implementation of the convention, along with financial and technical assistance in the interim period. These delegates have once again reiterated their desire to have provisions in the convention that address these concerns.

It is unclear what the final POPs convention will offer to its parties. What is clear is that without appropriate limitations, such as the inclusion of a precautionary approach on the use and production of existing and future POPs, combined with adequate financial and technical assistance, the convention will be spineless. What is left to be determined at INC5 is whether the POPs convention will succeed in becoming an environmental panacea or whether it will be a parody of what it could have been.

Editor’s Note: The fifth meeting of the INC is scheduled to take place in Johannesburg, South Africa, in December 2000. The Conference of the Plenipotentiaries for the POPs convention is scheduled to take place from May 21-23, 2001, in Stockholm, Sweden.