The second meeting of the Intergovernmental Negotiating Committee to Prepare a Global Legally Binding Instrument on Mercury (INC2) was held from 24-28 January 2011 in Chiba, Japan. The meeting was attended by over 600 participants, representing governments, UN agencies, and intergovernmental and non-governmental organizations.
INC2 was the second of five meetings anticipated to convene prior to the twenty-seventh session of the United Nations Environment Programme Governing Council/Global Ministerial Environment Forum (UNEP GC/GMEF) in 2013. During the week, delegates focused their attention on the Secretariat’s elements paper (UNEP(DTIE)/Hg/INC.2/3), which was requested at INC1. Using this paper as the basis for negotiation, INC2 achieved a full first reading of the elements paper, and mandated the Secretariat to prepare a new draft text, taking into account discussions at INC2, for further negotiation at INC3, scheduled to convene in October 2011.
Delegates arrived in Chiba enthusiastic to initiate negotiations on the text of the draft treaty. A spirit of goodwill reigned throughout the week, facilitated by the excellent organization of the host government. At the close of INC2, most participants were pleased with the progress made, and while acknowledging the road to developing the “Minamata Convention” remained long, were confident that a treaty on mercury would be concluded by 2013.
A BRIEF HISTORY OF THE GLOBAL ISSUE OF MERCURY
Mercury is a heavy metal that is widespread and persistent in the environment. It is a naturally occurring element and can be released into the air and water through weathering of rock containing mercury ore or through human activities such as industrial processes, mining, deforestation, waste incineration and burning of fossil fuels. Mercury can also be released from a number of products that contain mercury, including dental amalgam, electrical applications (e.g., switches and fluorescent lamps), laboratory and medical instruments (e.g., clinical thermometers and barometers), batteries, seed dressings, antiseptic and antibacterial creams and skin-lightening creams. Mercury exposure can affect fetal neurological development and has been linked to lowered fertility, brain and nerve damage and heart disease in adults who have high levels of mercury in their blood.
The United Nations Environment Programme’s Governing Council and Global Ministerial Environment Forum have regularly discussed the need to protect human health and the environment from the releases of mercury and its compounds since 2001.
24TH SESSION OF THE UNEP GOVERNING COUNCIL/GMEF: In February 2007, the GC-24/GMEF discussed the issue of mercury extensively and participants’ preferences for international cooperation on mercury that ranged from an immediate negotiating process towards a legally-binding instrument, to incorporating mercury into existing agreements, or concentrating on voluntary actions, especially through partnerships. Delegates agreed in Decision 24/3 IV that a “two-track” approach could be employed to take forward actions on mercury, while keeping open the path to a binding instrument in the future. The UNEP Executive Director was requested to prepare a report on mercury emissions and strengthen the UNEP mercury partnerships. An ad hoc open-ended working group (OEWG) of government and stakeholder representatives to review and assess options for enhanced voluntary measures and new or existing international legal instruments for addressing the global challenges posed by mercury was also established. Decision 24/3 IV provides the following priorities: to reduce atmospheric mercury emissions from human sources; to find environmentally sound solutions for the management of waste containing mercury and mercury compounds; to reduce global mercury demand related to use in products and production processes; to reduce the global mercury supply, including considering curbing primary mining and taking into account a hierarchy of sources; to find environmentally sound storage solutions for mercury; to address the remediation of existing contaminated sites affecting public and environmental health; and to increase knowledge on areas such as inventories, human and environmental exposure, environmental monitoring and socio-economic impacts.
FIRST MEETING OF THE OEWG ON MERCURY: The first meeting of the OEWG to Review and Assess Measures to Address the Global Issue of Mercury was held from 12-16 November 2007 in Bangkok, Thailand. The OEWG discussed options for enhanced voluntary measures, and new or existing international legal instruments on mercury. Delegates agreed on seven intersessional tasks to be undertaken by the Secretariat, including analyses of, inter alia: financial considerations of a free-standing convention, a new protocol to the Stockholm Convention and voluntary measures; sustainable technology transfer and support; implementation options; organization of response measures; costs and benefits for each of the strategic objectives; meeting demand for mercury if primary production is phased out; major mercury-containing products and processes with effective substitutes; and funding available through the Global Environment Facility and the Strategic Approach to International Chemicals Management.
SECOND MEETING OF THE OEWG ON MERCURY: The second meeting of the OEWG on Mercury convened in Nairobi, Kenya, from 6-10 October 2008. The OEWG discussed a future mercury framework including: elements to be addressed by a mercury framework; the type of framework to be used; and the capacity building, financial and technical support required to deliver on the elements. Delegates agreed on one legally binding option and three voluntary options for consideration by the UNEP GC.
25TH SESSION OF THE UNEP GOVERNING COUNCIL/GMEF: The 25th session of the UNEP GC-25/GMEF took place from 16-20 February 2009, in Nairobi, Kenya. Delegates agreed to develop a legally binding agreement on mercury. Decision GC 25/5 agreed to further international action consisting of the elaboration of a legally binding instrument on mercury, which could include both binding and voluntary approaches, together with interim activities, to reduce risks to human health and the environment. It also requested the Executive Director to convene one OEWG meeting in 2009, and an INC, commencing its work in 2010 with the goal of completing its work by GC-27/GMEF in 2013. Agreement could not be reached on leaving the “door open” to consider other heavy metals, but the decision does recognize that the mandate of the INC may be supplemented by future decisions of the Governing Council.
AD HOC OEWG TO PREPARE FOR THE INC ON MERCURY: This meeting convened from 19-23 October 2009 in Bangkok, Thailand. The OEWG agreed to recommend rules of procedure to the INC, as well as intersessional work for the Secretariat to prepare documentation for the INC, including options for structure of the instrument and a description of options for substantive provisions.
FIRST SESSION OF THE INC TO PREPARE A GLOBAL LEGALLY BINDING INSTRUMENT ON MERCURY (INC 1): This meeting convened from 7-11 June 2010 in Stockholm, Sweden. Delegates exchanged views on key elements of a convention, including: objectives; structure of the instrument; capacity building and technical and financial assistance; compliance; issues of supply, demand, trade, waste and storage; atmospheric emissions of mercury; and awareness-raising and information exchange. The key outcome of INC1 was a request to the Secretariat to draft the “elements of a comprehensive and suitable approach” to a legally binding instrument, act as a basis for negotiation at INC2.
On Monday, 24 January 2011, INC Chair Fernando Lugris (Uruguay) opened the session and noted several intersessional meetings and workshops held since INC1. He highlighted the achievements of the meetings of the Conferences of the Parties to the Convention on Biological Diversity and to the UN Framework Convention on Climate Change. Khalida Bouzar, Deputy Director of UNEP’s Division of Technology, Industry and Economics, thanked donors for their financial and other support and expressed hope that the draft elements paper prepared by UNEP can facilitate discussions, and that delegates would quickly start the drafting process for a new mercury treaty.
Shoichi Kondo, Senior Vice Minister of the Environment, Japan, welcomed delegates, outlined lessons learned from Japan’s experience with Minamata Disease, and reiterated Japan’s offer to host the diplomatic conference for the adoption of the Minamata Treaty in 2013.
Katsuaki Miyamoto, Mayor of Minamata, described discrimination faced by Minamata in the past, highlighted recent efforts for Minamata to become a model environmental city, and introduced a brief video on the history of Minamata Disease. Sumiko Kaneko, Storyteller of Minamata, shared her life story, explaining how her husband and three sons were affected by Minamata Disease, starting as early as 1951.
The Committee then adopted the agenda (UNEP(DTIE)/Hg/INC.2/1) without amendment. On organization of work (UNEP(DTIE)/Hg/INC.2/1/Add.1 and UNEP(DTIE)/Hg/INC.2/2), Chair Lugris suggested carrying out the work largely in plenary, and using the elements paper (UNEP(DTIE)/Hg/INC.2/3) as the basis for discussions.
Costa Rica, on behalf of the Latin American and Caribbean Group (GRULAC) highlighted that control measures should be proportionate to the mobilization of financial resources and capacity of developing countries, and said there is a need for clear political guiding principles in the preamble of the instrument, including the principle of common but differentiated responsibilities.
The EU, Nigeria for the African Group, and the Russian Federation for the Central and Eastern European Group, supported using the elements paper as the basis for negotiations.
The African Group highlighted the need for setting countries’ reduction goals, and providing financial and technical support to developing countries and countries with economies in transition.
Denmark, for the Arctic Council, suggested that the data on mercury from the Council’s monitoring programme on mercury in the Arctic be one of the cornerstones in developing the instrument.
Highlighting the importance of a holistic approach, China suggested addressing the guiding principles, while discussing technical issues.
Chile highlighted the need to protect its population from mercury emissions, but said reducing supply could disadvantage the country in its efforts to overcome poverty. The US said the elements paper should serve as a basis for INC discussions, and underscored the need for effective measures. Brazil said the social and health implications of artisanal and small scale gold mining (ASGM) were pertinent to his country and that regulating practices posed a major challenge. Tanzania noted one million people in her country are directly involved with ASGM and prioritized further studies on health and environmental impacts of ASGM. India said the mercury instrument should include a combination of voluntary and binding elements, underscoring it could not accept emission reduction targets.
Highlighting the importance of addressing ASGM in the mercury treaty, Nigeria explained that recently over 100 Nigerians had died from lead poisoning related to ASGM, and prioritized national assessments to raise awareness among policy makers. Iraq underscored the need to raise awareness of the risks associated with mercury. Mexico stressed the delicate nature of the elements paper and said it was necessary for countries to find a way to work with the Secretariat to ensure the next version of the negotiating text is truly representative of the proposals and discussions at INC2.
Oman stressed the need for differentiation in obligations and the importance of taking into account the social implications of a mercury phase-out. Algeria noted that the principle of common but differentiated responsibilities should imbue the process. Qatar called for reaching agreement on the gradual reduction of the use of mercury with a strategy for dealing with mercury waste and residue worldwide. The Coalition for Mercury Free Drugs (CoMeD), also on behalf of SafeMinds, applauded the draft elements paper but recognized that to be comprehensive the treaty must prohibit mercury containing vaccines and other drugs under Annex C (Mercury-Added Products). The Collaboration Center for Minamata Disease Victims, on behalf of Healthcare Without Harm, the International POPs Elimination Network (IPEN) and the Zero Mercury Working Group, said the Government of Japan and others must learn from Minamata Disease, and called on delegates to create an ambitious mercury treaty.
PREPARATION OF A GLOBAL LEGALLY BINDING INSTRUMENT ON MERCURY
Chair Lugris invited delegates to begin substantive negotiation on the instrument, and the Secretariat provided an overview of the documents prepared for this session.
MERCURY SOURCES AND EMISSIONS (PARAGRAPH 29): The Secretariat introduced the document on a study on mercury sources and emissions and analysis of the cost and effectiveness of control measures (UNEP(DTIE)INC.2/4), noting that it had been prepared in response to the request of the governments in UNEP decision 25/5 (paragraph 29).
Mexico, with the Federated States of Micronesia (FSM), Chile and Iraq, proposed updating the report, and establishing a contact group to analyze themes and contents of the instrument and identify the gaps in the documents for updating.
The EU said the document provides necessary information on sources and emissions, and constitutes a sound technical basis for negotiations on atmospheric emissions.
While recognizing adequacy of the information for atmospheric emissions, Brazil acknowledged the inadequacy of information on mercury pollution of water and soil in the study.
In response to questions from delegates, the Secretariat noted that the study addressed emissions to air only, but noted another study was being prepared on mercury releases to aquatic environment. He acknowledged the study focused on the four principal industrial sectors for which data was available and said there was no plan to update the Paragraph 29 study. Regarding contaminated sites, the Secretariat noted it had not been mandated to address this, but directed delegates to the work of the Jožef Stefan Institute.
ELEMENTS OF A MERCURY INSTRUMENT: The Secretariat introduced the elements paper (UNEP(DTIE)/Hg/INC.2/3) on Monday, noting it was presented as a means of facilitating the INC’s work. He said it included views from INC1 and those expressed in writing to the Secretariat during the intersessional period. Noting that the elements paper avoided features that would send parties immediately into non-compliance once the treaty entered into force, the Secretariat said the paper was arranged according to control measures plus annexes.
In the ensuing discussion, delegates offered general comments on the elements paper. Mexico highlighted the need to focus on human health. The African Group favored a dynamic structure that avoids future “bureaucratic bottlenecks.” Switzerland said the structure of the elements paper was useful for deliberation, but the final structure would likely require alteration. Japan supported a structure based on and consistent with the structure of the Stockholm Convention. Noting that nothing is agreed until everything is agreed, China stressed the mercury treaty was a “package negotiation.”
IPEN said the elements paper is not ambitious enough and called for stringent global action.
Japan, on behalf of the Asia-Pacific Group, stressed the need to take into account principles of the Rio Declaration, in particular the principle of common but differentiated responsibilities. GRULAC called for references to human health impacts and vulnerable populations. Jamaica requested the instrument take into account the special situation of Small Island Developing States (SIDS) and Least Developed Countries (LDCs).
Oumar Diaoure Cissé (Mali) was tasked with coordinating informal consultations on the preamble. After consultations, Cissé reported that he had collected various textual proposals for inclusion in the preamble of the revised draft instrument to be presented at INC3. He also noted several delegations favored omitting a preamble at this stage and that this view should be captured in a footnote. This text is expected to be included in the revised draft treaty to be presented at INC3.
PART I: INTRODUCTION. Article 1: Objective: On Tuesday, the Secretariat recalled agreement at INC1 not to begin negotiations on the objective until control measures and arrangements for financial and technical assistance have been discussed, and noted the draft article was provided as a placeholder.
New Zealand underscored that the instrument related to anthropogenic emissions of mercury. Jamaica and St. Lucia said the objective should be framed within the context of Principles 6, 7, 14, and 15 of the Rio Declaration. The African Group stressed the objective must recognize the lifecycle approach and in the long-term aim to eliminate, where feasible, global anthropogenic mercury releases using available technical and financial resources. Chile said the objective should include a mention of risks. The EU supported an objective consistent with that of the UNEP Global Mercury Partnership. The Russian Federation suggested modifying the objective by stating that this Convention is to protect the environment and human health from negative consequences of anthropogenic releases of mercury and its compounds.
Article 2: Definitions: The Secretariat suggested delegates consider definitions as they discuss the element where the term is used.
China suggested separating technical and political definitions. Switzerland, with Japan, supported including waste-related definitions consistent with definitions in the Basel Convention. He highlighted the need for definitions to differentiate between interim and permanent storage. Iran called for defining the environmentally sound disposal of mercury waste. Japan called attention to threshold values for mercury.
The EU cautioned against a definition of mercury-added products that would create loopholes for medical products containing mercury. Chile called for definitions of anthropogenic emissions and mercury mining.
The African Group, Indonesia, Argentina, Brazil, Colombia and UNIDO expressed concern with the definition of ASGM, especially with the use of the word “informally” and requested its modification. Japan called for greater clarity regarding the “small scale,” “limited capital” and “rudimentary” qualifiers in the definition. Indonesia, supported by the US, suggested more clearly defining the term “mercury containing ore.”
The US said: there is no need to have long definitions for those terms that are used in only one article; one term or word in different articles could have different definitions such as mercury in air emissions and in trade; and best available techniques (BAT) and best environmental practices (BEP) should be defined.
Brazil, Singapore, Qatar and Jordan suggested modification of the definitions of mercury, and mercury compounds.
PART II: MEASURES TO REDUCE THE SUPPLY OF MERCURY. Article 3: Mercury supply sources: The Secretariat introduced the text on supply sources, highlighting Annex A (Sources of mercury supply). Highlighting the need of mercury in dental use, efficient lighting equipment and other uses, India said that supply and demand should be addressed in a composite manner, and realistic time frames should be provided for permissible uses and exemptions. Norway said that reducing the mercury supply is essential.
While supporting the general approach of the article, the US suggested deleting text “not allow the sale, distribution in commerce, or use of mercury from supply sources listed in Annex A except for a use allowed to the party under this Convention,” saying that it would be costly and difficult to implement. The US also suggested deletion of reference to “other private mercury stocks” from Annex A.
The EU underscored the need for a ban on primary mercury mining to apply when the convention enters into force. China favored taking a consumption-oriented rather than a supply-oriented approach, noting that in China permits are granted by the local authority level for a period of 29 years. Supporting China, Pakistan stated that developing countries are not in a position to ban the supply of mercury. Chile highlighted the need to define the term “mercury mining.” Japan supported a ban on primary mining, but said the approach would require some time-limited exemptions. Oman disagreed with specifying a time period for the end of primary mining. Switzerland supported banning mercury mining and phasing out existing mines, stating it was working with Kyrgyzstan to do this. Kyrgyzstan stated its mercury mines provide employment to 20,000 people and therefore the closing of these companies would be difficult. He said the proposals to assist his country to close mines were welcome, but that “we are not in a position to do so just yet.” Reflecting on the fact that primary mercury mining is taking place in only two countries, Canada said the treaty should not require all countries to legislate against primary mining. The African Group supported phasing out primary mercury mining, and stressed the need for financial and technical assistance to developing countries to address the issue.
Sudan and Argentina supported banning primary mercury mining. Dominican Republic explained that mercury is a by-product of its gold mining activities and said the treatment of by-product mercury required clarification. Colombia said the mercury instrument should decrease supply as well as demand.
Mexico highlighted the need for financial resources and time lines to comply, and Cuba noted it would be difficult to comply with some of the provisions in Article 3. Jordan, with FSM, stressed the importance of distinguishing between transporting mercury for trade or as waste and transporting for storage.
UNIDO cautioned against a potential conflict with Article 5 (international trade with parties, in mercury or mercury compounds) if, in a transitional period, ASGM occurs and no mercury is produced. The Zero Mercury Working Group said strong provisions limiting supply must be put in place to discourage new or expanded uses of mercury and proposed providing the Conference of the Parties (COP) authority to request information on global uses and trade. Explaining “not allow” is a passive term, IPEN suggested substituting the term with “prohibit” or “prevent.”
On the distinction between government stocks and private stocks, the Secretariat explained this required further elaboration and underscored that mercury traders have significant amounts of mercury in private stocks, which would impact efforts to regulate the supply of mercury in international commerce.
Vladimir Lenev (Russian Federation) was tasked with coordinating informal consultations on Article 3. After consultations he reported: many countries expressed the view that primary mercury mining is the least desirable source of mercury and are prepared to work on the basis of the Secretariat’s paper to reduce primary mercury mining; one country said it could consider this issue when an agreement on trade of mercury was reached; and one country with primary mercury mining said they would reduce mining on the condition of receiving financial and technical assistance. The group agreed that it would be useful to discuss this issue at INC3.
Article 4: Environmentally sound storage: The Secretariat explained Article 4 sets out the obligations for the environmentally sound storage of mercury and mercury compounds and provides for the COP to adopt guidance on environmentally sound storage at COP1. He highlighted the terms of reference for the development of the guidance under Annex B (Mercury and mercury compounds subject to international trade and environmentally sound storage measures). Due to the interlinkages between issues addressed in Articles 4, 12 (mercury waste) and 13 (contaminated sites), the Committee considered these as a cluster.
On Article 4, the EU distinguished between commodities and wastes, explaining waste mercury should fall within the Basel Convention’s scope. Norway said BAT/BEP guidelines should be developed in close cooperation with the Basel Convention. He said parties should develop national action plans for the safe storage of mercury, in parallel to what is proposed under Article 8 for manufacturing processes. Japan stressed the importance of clearly defining storage and disposal.
Canada called for clarifying the article’s scope, proposed including a reference to the Basel Convention’s authority for storage of waste and suggested deleting references to the preparation of guidance. Jamaica underscored relevant provisions of the Basel Convention and warned against duplication. The Philippines said the issue of storage is particularly complex and flagged jurisdictional and definitional issues in relation to the Basel Convention.
Switzerland underscored interlinkages between Articles 4, 12 (mercury wastes) and 13 (contaminated sites) and said all mercury destined for storage should be considered as waste and relevant measures should apply. The US suggested that each region have a regional storage plan, and supported focusing on the storage of elemental mercury. China noted any guidance should be revised and updated, and supported deleting a reference to cooperation in developing and maintaining global, regional and national capacity for environmentally sound storage.
IPEN suggested an expert group be tasked with completing work on guidelines prior to COP1 and stressed the need to consider the application of the “polluter pays principle” and of Rio Principle 10 on community participation. The Zero Mercury Working Group underscored the private sector has a major role to play in enhancing storage capacities and financing additional capacity for storage. The Sustainable Development Policy Institute, on behalf of the International Society of Doctors for the Environment, stressed the importance of site selection of storage facilities.
Delegates agreed to establish a contact group on the cluster (Article 4, 12 and 13), chaired by Katerina Sebkova (Czech Republic) and Abiola Olanipekun (Nigeria).
Updating plenary on Friday, Co-Chair Olanipekun said the group had concluded that: elemental mercury should be classified as a waste and a commodity, and that elemental mercury waste is a substance to be disposed of, as opposed to a commodity, which is destined for a use under the mercury instrument; there should be no duplication or overlap between the mercury instrument and the Basel Convention; and there is a need to define mercury thresholds. The contact group requested that the outcomes of its discussions be brought forward for further discussion at INC3.
Articles 5 and 6: International trade with parties in mercury or mercury compounds; and International trade with non-parties in mercury or mercury compounds: The Secretariat introduced Article 5 explaining it would limit trade in items listed in Annex B, allowing only for environmentally sound storage or allowed uses, and would require prior consent from the receiving party before shipment. He noted the article would not allow the import or export of mercury for use in ASGM. Delegates agreed to concurrently consider Article 6 (international trade with non-parties in mercury or mercury compounds). Introducing Article 6, the Secretariat noted it only allows import or export for purposes of environmentally sound storage, providing an incentive for countries to become parties.
India, with China, stressed the need to consider supply and demand together, and China supported combining discussion on trade with those on the supply of mercury mining (Article 3.3).
On Article 5, Norway supported ASGM not being considered an allowable use for trade. The US, Canada and Japan supported using trade measures as a tool to reduce mercury, and an export ban of mercury for ASGM. Switzerland said the prior informed consent (PIC) procedure proposed was promising and encouraged synergies with the Rotterdam Convention. The Zero Mercury Working Group suggested that the instrument should prescribe that all international trade in mercury for dentistry should be packaged as dental amalgam, as opposed to elemental mercury, therefore avoiding use in non-permitted activities.
New Zealand supported the approach of Article 5 regarding the provision on trade for environmentally sound storage and the PIC procedure. Pakistan, Egypt and Australia supported the adoption of the PIC procedure and suggested coordination with the Rotterdam Convention. GRULAC suggested a licensing system to control trade among parties.
Guinea, Colombia, Mali and Somalia cautioned against the ban of trade for ASGM incentivizing illegal smuggling, and suggested developing a strategy to prevent this, and asked for technical assistance and capacity building to developing countries, leading to a step-by-step reduction and elimination of mercury use in ASGM.
Indonesia supported strict measures to control trade of mercury and mercury compounds. Egypt said trade related provisions should focus on export.
Noting that mercury wastes have caused serious environmental problems in SIDS, IPEN suggested imposing very strict provisions for export of mercury and mercury compounds, and advocated application of globally harmonized customs systems and an Extended Producer Responsibility system.
On Article 6, the EU opposed exports to non-parties and supported export notifications and a consent procedure. Norway supported a ban if it is not possible to develop a process to ensure non-parties follow obligations on storage. Switzerland supported following the Stockholm Convention model for a certification scheme for non-parties. GRULAC supported the PIC procedure and supported a ban for trade with non-parties except for when the demand for acceptable uses cannot be satisfied or in cases of storage. The Zero Mercury Working Group favored prohibition of export of mercury to non-parties. Switzerland stressed the need to comply with international trade law.
PART III: MEASURES TO REDUCE INTENTIONAL USE OF MERCURY. Articles 7 and 8: Mercury-added products; and Manufacturing processes in which mercury is used: The Secretariat introduced Article 7 explaining that the language “mercury-added products” was specifically designed to ensure that the article applies to products to which mercury has been intentionally added, thereby excluding fish. He outlined that the draft elements paper used a positive list approach, meaning only products listed in Annex C (Mercury-added products) would be banned, but also outlined a negative list approach, in which all products are banned and exempted products are listed.
Due to the interlinkages between Article 7, Article 8 (manufacturing processes in which mercury is used), and Article 14 (allowable-use exemptions), these articles were addressed as a cluster.
On Article 7, the Philippines favored the negative list approach, with certain time-limited exemptions, and said labeling of mercury-added products should also be considered. The EU and Norway also favored a negative list approach, as well as a review mechanism for exemptions. Stressing the need to avoid Africa becoming a dumping ground for mercury-added products, the African Group called for a general ban on mercury-added products, coupled with adoption of the Extended Producer Responsibility approach. Switzerland also favored a general ban, stating such an approach would send a clear signal and establish a favorable long-term incentive structure.
GRULAC proposed a hybrid of the negative and positive list approaches and proposed three groups: banned mercury-added products with available alternatives; mercury-added products in which a transition period is required; and products with no alternatives.
The US supported a positive list approach, saying it would allow a more focused and cost effective effort to address mercury-added products. Also favoring a positive list approach, China suggested export of products requires written consent and a guarantee by the importer that they will assume the risk of disposal. Australia and New Zealand favored a positive list approach so as to concentrate implementation efforts on major use activities. Canada noted that although its domestic regime will use a negative list approach, there was merit to positive listing for simplifying ratification and avoiding implementation and compliance challenges.
Stating the elements paper did not “grasp the full picture” of all products, Japan proposed a technical discussion or intersessional meeting to define the term “mercury-added product.” On control measures, Canada said labeling and providing information on mercury content and options for end of life management can be an important addition.
India stressed the list in Annex C needs careful consideration. Turkey called for better control to prevent illegal traffic of mercury-added products. Jamaica stressed the need to link Article 7 to the articles on environmentally sound storage and mercury wastes. Tuvalu supported listing dental amalgam under Annex C. SafeMinds said mercury in medical products should be included in Annex C.
IPEN, with Healthcare Without Harm and the Zero Mercury Working Group, supported using a negative list approach and said, if a positive list approach is to be used, Annex C should be expanded to include pesticides, biocides, paints and pigments, and creams and soaps. The World Dental Federation said any treaty on mercury should not seek to restrict personal health decisions. The International Association for Dental Research said current scientific evidence supports the safety of dental amalgam and called for its use to be allowed. CoMeD stressed that if there is no ban on the administration of mercury in all forms to humans, then either the public will believe the treaty and refuse vaccines or the public will not feel compelled to cooperate with treaty mandates. The World Alliance for Mercury Free Dentistry stressed amalgam is a primitive product and highlighted the potential of atraumatic restorative treatment (ART), which can be implemented by non-dentists. Japan suggested that existing plants using the processes listed in Annex D (Manufacturing processes in which mercury is used) be dismantled as soon as possible.
The Secretariat introduced Article 8 on manufacturing processes, noting that two processes, chlor-alkali production and vinyl chloride monomer (VCM) production using mercury, that are to be restricted are listed in Annex D.
The EU supported including chlor-alkali production and VCM production processes using mercury in Annex D, stating all the plants using such processes must be ultimately closed.
Norway stated the instrument should include a time frame to phase out these processes and facilities using mercury, and suggested adding to Annex D the production processes of chemicals and polymers with mercury compounds as catalysts. He said new plants and facilities and expansion of such processes should be prohibited and the references to the exemptions in Article 8 be deleted.
China said his country is facing a great challenge with regard to the phase-out of VCM production, and, supported by Pakistan, suggested that in absence of practical and applicable substitutes for mercury for VCM, a practical approach on a voluntary basis should be adopted.
The US: supported eventual elimination of the two processes listed in Annex D; stated that exemptions should be applied strictly and should have a time frame for their phasing-out without prolonging their use; and said the preparation of a national action plan (NAP) should be an obligation, and environmentally sound storage should be a part of this process. Pakistan suggested the time frame for the formulation of NAPs be two years after the instrument enters into force. Iraq highlighted that chlor-alkali production is an important industry to his country and requested support for development and use of alternatives. Switzerland preferred a general ban on use of mercury in the processes listed in Annex D, and stated that the approach proposed in the elements paper is not ambitious enough.
World Chlorine Council suggested sufficient time should be allowed to ensure transition of these processes on a voluntary basis and warned against imposing unrealistic provisions.
Zero Mercury Working Group supported phasing out mercury in the two processes listed in Annex D, noting that there are well-developed alternatives to mercury for chlor-alkali production and mercury free catalyst for VCM should be possible soon. IPEN suggested Annex D be expanded to include more processes using mercury as catalysts.
Delegates agreed to revisit the issue cluster at INC3, and nominated Gillian Guthrie (Jamaica) and Nina Cromnier (Sweden) as focal points for consultation. After consultations Cromnier reported: that no consensus had been reached, with some favoring a negative approach and others a positive approach: some said new uses and products should not be regulated while others required flexibility; regarding Annex C (mercury-added products), one delegation said mercury use in batteries should be considered essential; one delegation suggested including cosmetics in Annex C; most delegations said VCM should be regulated, but one delegation disagreed; some delegations suggested establishing a committee to examine nominations for exemptions; and the group agreed a contact group on products and processes should be established at INC3.
Article 9: Artisanal and small-scale gold mining (ASGM): On Tuesday the EU supported the inclusion of provisions aiming at the reduction and where possible, elimination of mercury use in ASGM. The African Group favored mandatory obligations for parties to address ASGM, which she said would allow the implementation of a coordinated demand reduction strategy and bring ASGM into the compliance regime. Presenting the outcomes of the recent Global Forum on ASGM at which 15,000 ASGM miners were represented, the Philippines said the event highlighted that measures to address ASGM need to be legally binding. Highlighting that the ASGM sector is the biggest user of mercury, Norway said that supply and trade provisions must be supplemented by mandatory actions at the national level. The US questioned the practical value of import restrictions, favoring prohibition of dangerous practices. Switzerland said ASGM measures require a combination of voluntary and mandatory measures and proposed a three-step approach: formalizing the legal recognition of the ASGM sector; regulating the sector; and reducing and eliminating the use of mercury in ASGM.
GRULAC, supported by Indonesia, said a gradual elimination of mercury was necessary for the ASGM sector. Detailing the need to take into account specific situations in each country, Chile said voluntary approaches are the most viable for ASGM. Papua New Guinea called for voluntary and mandatory measures, as well as flexibility given the limitations and constraints within specific countries. Brazil highlighted the social implications connected with ASGM, including child labor and women’s rights.
UNIDO said provisions on ASGM should be mandatory, and highlighted guidelines for the development of national action plans for ASGM, which may be used as guidance for the treaty.
Noting that reducing use of mercury in ASGM is possible, the Zero Mercury Working Group suggested the mercury instrument have mandatory obligations to take measures, including developing action plans.
Highlighting that ASGM is legitimate in the mining sector, the Alliance for Responsible Mining objected to banning use of mercury in ASGM, but suggested an alternative approach by providing technical and financial assistance and capacity building to developing countries for adoption of mercury-free technologies.
The INC established a contact group on ASGM co-chaired by Felippe Ferreira (Brazil) and Donald Hannah (New Zealand). After the consultation had taken place, Co-Chair Ferreira reported that the group had concentrated on definitions of ASGM, restrictions to trade, the scope of the article, and the mandatory and voluntary aspects of its provisions, including with respect to national action plans. Co-Chair Hannah noted participants agreed on the need to discuss Article 5 prior to further discussions on Article 9 and invited delegates to consult with the contact group co-chairs to supplement the contact group report.
PART IV: MEASURES TO REDUCE RELEASES OF MERCURY TO AIR, WATER AND LAND. Articles 10 and 11: Atmospheric emissions; and Releases to water and land:
The Secretariat introduced the article on major anthropogenic sources of atmospheric emissions, and Annex E (Atmospheric emissions). He explained the element included two sets of requirements. The first would require: the use of BAT and the promotion of BEP for new sources; the promotion of BAT/BEP for existing sources; and the adoption of BAT/BEP guidelines at COP1. The second would apply only to parties with significant aggregate mercury emissions (SAME) from Annex E sources. These parties would adopt national emissions reduction goals and would develop national action plans.
Several delegates suggested additional sources to be listed under Annex E, including iron and steel, ASGM, large scale gold mining, dental amalgam, and oil and gas production facilities. Iran, with Algeria, said national gas and oil production should not be listed as a source, and Iraq highlighted the need for a study on mercury emissions from the oil and gas industry. The US opposed listing ASGM under Annex E.
The EU, Norway and the US supported requiring BAT for existing installations over time. Norway said the use of BEP should also be mandatory and favored the establishment of emission limit values. The US supported including general guidance for determining BAT and BEP following the Stockholm Convention model. GRULAC supported the promotion of BAT and BEP wherever economically feasible.
The Asia-Pacific Group stressed the importance of addressing atmospheric, land and soil emissions concurrently and, with Morocco, underscored avoiding transfer of mercury from one media to another. Cameroon stressed the need to implement measures to reduce unintentional mercury emissions. The EU proposed encouraging parties to consider an appropriate mix of national measures to reduce emissions from the domestic burning of coal. Switzerland said the draft was not sufficiently ambitious, supported looking into other techniques and policy approaches, and highlighted opportunities to make use of pollution reduction techniques undertaken under other agreements. FSM underscored the potential for maximizing potential co-benefits from mercury reductions in setting BAT/BEP guidelines.
India outlined plans to double its power capacity in the next 10 years in order to provide access to electricity to its 100 million households without electricity. She said India preferred a voluntary reduction rather than an elimination of emissions. India also: called for distinguishing between intentional and unintentional emissions; said it would be difficult to accept targets; stressed the need to be guided by the principle of common but differentiated responsibilities; urged caution in setting ambitious timelines; and stressed the need to focus on viable and economical alternative technologies.
China highlighted it still has over 3.5 million people without electricity. China questioned the definition of SAME, and supported removing provisions related to parties with SAME.
Brazil opposed any categorization of parties not in line with the principle of common but differentiated responsibilities. The African Group called for a clearer definition of SAME. Japan stressed the need to discuss the criteria for SAME and the adequacy of Annex E. Indonesia called for significant discussion on SAME, calling on the Secretariat to review mercury emissions from each country before proceeding with discussions on Article 10.
Norway supported provisions for parties with SAME. The US favored numerical goals consistent with reductions achieved by the application of BAT/BEP, said countries categorized as having SAME should represent as a group the great majority of global mercury emissions, and that only significant emitters of mercury should have to develop and maintain inventories. Oman said BAT/BEP requires definition.
The Inuit Circumpolar Council (ICC) described the serious impacts of mercury on the Inuit people, and supported adoption of BAT/BEP focused on renewable energy resources. Zero Mercury Working Group suggested: including the existing facilities in the guidelines on BAT/BEP; and applying real time monitoring to track performance to ensure continuous compliance.
IPEN supported preparation of detailed BAT guidelines for approval by the COP, and setting obligations for parties with SAME. The Europe Cement Federation committed to make efforts to reduce anthropogenic emissions of mercury, and fully supported development of the BAT/BEP guidelines, and attainable national action plans.
On Article 11, releases to water and land, the Secretariat noted the issue is also addressed in Articles 3, 9, 12, and 13.
Norway suggested adding dental practices and non-ferrous metals to Annex F (Sources of mercury releases to water and land), and supported developing guidelines on BAT/BEP. Japan highlighted the importance of consistency with existing conventions such as the Stockholm Convention.
The EU proposed elaborating BAT for reducing mercury releases to water and land. Burkina Faso favored progressive reduction and elimination of mercury emissions to land and water, and emphasized financial and technical assistance. Noting the issue under this article is addressed in several other articles, Canada and the US preferred deleting Article 11.
Brazil suggested a balanced approach between emissions and releases to all environmental media and, with IPEN, suggested combining Articles 10 and 11.
Delegates agreed to establish a contact group on emissions co-chaired by John Roberts (UK) and Wijarn Simayacha (Thailand). The group was tasked with considering: merging Articles 10 and 11; the appropriateness of the general provisions on BAT/BEP; the need for BAT/BEP definitions; additional obligations for large emitters; and potential additional sources for inclusion in Annex E.
After the group had met twice, Co-Chair Roberts informed the plenary that good progress had been made in understanding the key issues, but differences remained. He reported that: the group had agreed on the need to define BAT, but not on whether BAT should cover existing sources and be flexible; the group was divided on whether parties with significant aggregate mercury emissions should establish goals; on industries to be covered, divergent views remain on whether to include the iron and steel industry, oil and gas extraction, and residential coal burning; regarding ASGM, the group agreed to consider it again together with other future articles; some parties preferred keeping Article 11 separate, but agreed it should be considered together with wastes and processes at a later stage in the negotiations; and the group agreed that “contaminated sites” should be removed from Annex F.
Article 12: Mercury wastes: This article was discussed together with Article 4. The Secretariat noted that the elements paper takes a similar approach as the Stockholm Convention. In the discussion many countries stressed the need to take into account and cooperate with the Basel Convention. Norway and Jamaica stressed the potential to improve upon the Basel Convention’s provisions and obligations related to mercury wastes in this new instrument.
On a background paper on the relationship with the Basel Convention (UNEP(DTIE)/Hg/INC.2/16), Switzerland noted weaknesses and supported redrafting it. The Basel Convention Secretariat offered its guidance in overcoming discrepancies in the background paper and explained the technical guidelines on mercury wastes would be presented to Basel Convention COP10 in October 2011.
Noting environmentally sound management of wastes has already been covered under the Basel Convention, GRULAC suggested deleting this provision, with the definition of mercury wastes maintained. GRULAC also highlighted: the need for more information and data; the relationship between implementation and technical assistance; the socio-economic consequences of the measures; and the need to develop risk evaluation methodologies with respect to contaminated sites.
The African Group said provisions under this new instrument should be able to address problems such as dumping of hazardous wastes in developing countries without duplicating efforts under the Basel Convention.
The EU stressed all types of mercury wastes should be covered and said the article should highlight the sound handling, transport and disposal of wastes. New Zealand called for storing all wastes in an environmentally sound manner, applying sound risk analysis, and adopting clear and transparent processes.
The Philippines suggested a provision on banning the transfer of mercury wastes and, with Kiribati and Iraq, underlined developing countries’ need for assistance and capacity building. Australia, Jamaica and Barbados called for the needs of SIDS to be taken into account. Saudi Arabia underscored the need for: assisting developing countries in identifying contaminants; binding regulations; assistance to developing countries; and strengthening regulatory mechanisms for cooperation and training in line with provisions of the Basel Convention.
The US suggested the article on wastes be drafted in relation to the demand and supply of mercury, proposed using a flexible approach taking into account different environmental management regimes, and favored permitting the recovery of mercury from high concentration mercury wastes.
Switzerland explained the instrument should be able to deal with four cases: when elemental mercury is removed from the market and is treated as hazardous waste; when products containing mercury are removed from the market and become waste; when elemental mercury is still allowed and used and is treated as a commodity; and, when mercury-added products are permitted. He called for a common classification of mercury waste.
China sought clarification on whether Article 12 as drafted would apply to coal ash from coal fired power plants, and if it did, warned against the costs of dealing with such wastes. He stressed the need for a legally binding financial arrangement as part of the instrument.
The Zero Mercury Working Group said: the INC should take the lead in setting threshold limits and acceptable practices; the private sector has a role to play in providing financial and technical resources; and guidance on practices must be mandatory. On avoiding duplication with the Basel Convention, IPEN underscored there is no remit under the Basel Convention to eliminate or phase out any product, nor on the collection, storage and transport of mercury waste.
Article 13: Contaminated sites: This article was discussed together with Article 4. The EU favored a focus on the assessment of contaminated sites and suggested a BAT/BEP approach is not applicable for contaminated sites, because of the inherently unique nature of such sites. The African Group called for specific actions to protect the public from contaminated sites.
The Zero Mercury Working Group and IPEN stressed the need to learn from the Minamata experience and prevent mercury contamination from impacting human health.
Article 14: Allowable-use exemptions: This article was discussed together with Articles 7 and 8. The Secretariat explained the article establishes an allowable use register, which would be available to parties before the entry into force of the convention.
The EU underscored that the instrument should motivate parties to find alternative products and manufacturing processes, and said a subsidiary body or technical committee may be necessary. Japan stressed the need to have a detailed science-based discussion on allowable-use exemptions. GRULAC stressed that COP1 would require a clear basis for decision making. Switzerland stated that allowable-use exemptions should be decided on by the COP, based on consideration of a report by the parties.
China favored provision for both allowable and acceptable use. Noting that the procedural regime established under Article 14 was dependent on negotiation of Articles 7 and 8, the US suggested the instrument give more guidance to the COP on the review process.
The Zero Mercury Working Group said exemptions for chlor-alkali plants should sunset by 2020. The European Lamp Companies Federation encouraged the INC to consider regulation of mercury combined with a recycling and take-back scheme.
PART VI: FINANCIAL RESOURCES AND TECHNICAL AND IMPLEMENTATION ASSISTANCE. Article 15: Financial resources and mechanisms: The Secretariat introduced Article 15, noting divergent views on the form of the instrument’s financial mechanism. He noted options include the Global Environment Facility (GEF), a stand-alone fund modeled on the Montreal Protocol’s Multilateral Fund (MLF), or a combined or alternative approach.
India did not support using an existing mechanism, citing meager additional resources in most multilateral environmental agreements (MEAs) and a slow and cumbersome GEF mechanism. India said the instrument should spell out monitorable provisions for technical assistance and financial resources and called for a link between control measures, and the obligation to provide additional finances. Mexico underscored the unseverable link between commitments and the financial mechanism and suggested first defining control measures.
GRULAC highlighted the need for legally binding commitments on: cooperation; transfer of technology and capacity building. The Asia Pacific Group underscored the need to consider an effective financial mechanism, including a MLF-type mechanism.
Iran said having a separate article on the transfer of technology is vital to compliance. Colombia stressed that financial assistance, technical assistance, and institutional strengthening were required and that ASGM also required cultural change.
The Philippines, Jamaica, Qatar, Pakistan, Saudi Arabia, Jordan, Oman and Cuba supported a financial mechanism modeled on the MLF. The African Group underscored the potential for the GEF to play a role in financing the instrument, but said an MLF model could facilitate compliance. Comparing the financial mechanism to the engine of a ship, China appealed countries to have political will to construct a new and good engine for the smooth sailing of the ship. He also said that the financial mechanism is the top priority at INC-3 and a precondition for the instrument on mercury.
Favoring the GEF as a financial mechanism, the EU, Switzerland and Canada said they were open to discussing the MLF model. The EU noted it saw no justification for establishing a new mechanism for one substance and that any new mechanism would have to be open to other substances. Switzerland said the financial mechanism should be integrated into the exiting international environmental governance regime, and it should be fair and sustainable. Côte d’Ivoire supported using the GEF, but underscored the need to improve the Facility. Japan favored utilizing existing mechanisms and contributing on a voluntary basis.
Norway, Jamaica, Oman and the US underscored the role of industry in financing the mercury instrument. Egypt said that the financial mechanism for the mercury instrument should be sustainable and sufficient, and highlighted the principle of common but differentiated responsibilities.
The US said a financial mechanism should: effectively implement projects and programmes; be responsive to the COP; focus on measures related to the instrument’s obligations; be able to mobilize resources in a sustainable manner; and leverage investment. He said that while a stand-alone mechanism presented some advantages, more discussion was needed on this and he cautioned against prejudging the nature of the financial mechanism.
Norway proposed the Secretariat prepare a comparative analysis on how the different options can: effectively respond to guidance; facilitate compliance; promote mobilization of resources by a broad donor base; ensure replenishment; base projects on country proposals; and facilitate further cooperation in the chemicals and waste area.
South Africa reported on UNEP’s Consultative Process on Financing Chemicals and Wastes, highlighting its relevance for the mercury instrument.
UNIDO described its assistance to countries under GEF funding. The GEF outlined its reform efforts and said US$20 million had been made available for efforts to address mercury. IPEN proposed that SIDS and LDCs have special access to the financial mechanism.
Article 16: Technical assistance: The Secretariat introduced Article 16, explaining it encourages cooperation between parties, establishes a reporting requirement, and requests the COP to provide further guidance on the issue.
The EU emphasized that the GEF would have an important role to play. The US stressed approaches should be effective, sustainable in the long-run and cost effective. Uruguay and Pakistan underscored the potential role of existing regional and subregional centers. Japan supported following the Stockholm Convention model.
Article 17: Implementation Committee: The Secretariat explained Article 17 takes a facilitative approach and sets out basic elements that might be needed in the terms of reference of an implementation committee to be adopted by COP1.
China said implementation should combine, for developing countries, an obligation to implement domestic measures, and for developed countries, an obligation to follow the guidance of the instrument to provide financial and technical support.
The EU, with the US, strongly supported a facilitative, non-confrontational approach, and underlined that external financing cannot be viewed as a general condition for compliance.
The EU, the US and Canada supported establishing the committee in the text of the instrument. Chile favored limiting the article to an enabling clause for further discussion at COP1.
The Asia-Pacific Group called for the compliance mechanism to be based on the principle of common but differentiated responsibilities.
Kerstin Stendhal (Finland) and Damaso Luna Corona (Mexico) were tasked with facilitating consultation on Part VI. After the consultation had taken place, Luna Corona reported back, explaining a list of contributions for revisions of Articles 15, 16 and 17 had been submitted to the Secretariat.
PART VII: AWARENESS-RAISING, RESEARCH AND MONITORING, AND COMMUNICATION OF INFORMATION. Articles 18, 19 and 20: Information exchange; Public information, awareness and education; and Research, development and monitoring: The Secretariat introduced Articles 18, 19 and 20, which were addressed as a cluster.
The EU suggested UNEP continue to facilitate information exchange, and stated that export notification and a written consent procedure are important, but should not be included in Part VII. She also: underlined the importance of focusing on vulnerable groups for awareness-raising and the role of NGOs in information exchange; suggested adding a paragraph to encourage public access to information on mercury and risks; and stated monitoring activities need careful evaluation.
Japan highlighted the importance of information exchange, and announced it had made available a brochure on Minamata Disease. He said that each country should prepare an emission inventory, and further efforts are needed to improve UNEP’s tool kit for such an inventory.
The African Group highlighted the importance of information exchange, and education and consumer awareness-raising programmes.
Chile asked for clarification of terms such as “national authority.” Indonesia asked for a clear definition of anthropogenic sources. China questioned the relevance of the results of monitoring natural media, such as fish, to the convention’s implementation because, he said, monitoring could not determine how much is from anthropogenic sources as opposed to from natural sources.
Regarding Article 19, Switzerland advocated synergies with the Basel Convention, and on Article 20, encouraged provisions on harmonization of data on regional and global levels. The US highlighted need for: continued information exchange; monitoring mercury concentrations; and assessing exposure and risks. She also suggested including the information on long-range transportation of mercury, and harmonizing and standardizing monitoring.
Brazil favored specific reference to ASGM and involving the World Health Organization and using its experiences. Norway highlighted the role and importance of monitoring, and suggested using the Stockholm Convention approach.
The Center for Public Health and Environmental Development committed to playing a role in research, exchange of scientific information, and awareness-raising, and, with IPEN, suggested establishment of a clearing-house mechanism for information dissemination. IPEN said civil society should be considered as a valuable source of information, and highlighted the importance of the public receiving timely information.
Article 21: Implementation plans: The Secretariat introduced this article that establishes a framework for developing and submitting national implementation plans (NIPs), explaining the commitment would be discretionary.
Chile said NIPs should be carried out by all parties. Japan and the EU favored voluntary NIPs, with the EU clarifying that the preparation should be obligatory to parties subject to the requirements under Articles 8 (manufacturing processes in which mercury is used) and 10 (atmospheric emissions). The EU said that, for those countries for which NIPs are appropriate, they should be prepared and adopted prior to the instrument’s entry into force, and highlighted resources available under the GEF’s fifth replenishment to this end. China called for greater flexibility in NIP preparation. The US and Canada supported putting consideration of this article aside until requirements for national action plans under other articles have been clarified.
IPEN warned that if NIPs are voluntary they would not be considered compliance activities, and would not be automatically eligible for financial support. She also highlighted NIPs’ value in preparing countries for ratification and in providing an opportunity for the engagement of stakeholders.
Article 22: Reporting: The Secretariat explained the article contains cross-references to reporting requirements in other articles and also provides for COP1 to decide on the frequency and format of reporting.
Several delegates suggested changes to the list of information to include in reports. The EU highlighted the potential for synergies in reporting, especially with the Basel and Stockholm Conventions. The US suggested discussing reporting requirements in the context of each article that addresses the issue on which reporting would be required.
The Zero Mercury Working Group proposed: first reports be due two years after entry into force; providing trade data annually; and authorizing the COP to change reporting intervals, if appropriate.
Article 23: Effectiveness evaluation: The Secretariat noted this article requires a first review of effectiveness four years after entry into force and sets out some of the information upon which the evaluation must be based.
The EU suggested the COP adopt effectiveness evaluation criteria or indicators. China, Jamaica and Brazil stressed effectiveness evaluation should also take into consideration: the effectiveness of the financial mechanism, and arrangements for technology transfer and capacity building.
The US suggested the first effectiveness evaluation take place eight years after entry into force. Japan supported following the model of the Stockholm Convention’s Global Monitoring Plan, Norway supported full cooperation and exploring synergies with the Stockholm Convention on monitoring, and Canada suggested a global harmonized monitoring plan. IPEN highlighted: the importance of capacity building, and establishment of a monitoring network of mercury risk for pregnant women and children, and one for monitoring mercury in fish.
Delegates agreed Zukie Noluzuko Gwayi (South Africa) and Daniel Ziegerer (Switzerland) would coordinate consultation on Articles 21, 22 and 23.
After the consultation had taken place, Gwayi reported that delegates expressed general agreement on the importance of information exchange, and they agreed: synergies with other conventions and the Strategic Approach to International Chemicals Management (SAICM) need to be identified and capitalized on; clarity on the role of regional centers is lacking in the elements paper; Article 19(b) on training, education and public awareness should make reference to the World Health Organization; the current UNEP mercury tool kit should be improved; and guidance on how to detect the mercury from natural sources should be developed. She also reported: there was general agreement on the usefulness of the NIP, but some said it should allow flexibility; experiences from other MEAs should be considered; there is a need to further clarify the difference between NIPs and NAPs; reporting should be based on NIPs and should be harmonized with other existing MEAs. On effectiveness evaluation, she said that different views were expressed, with some asking for adequate financial resources.
PART VIII: INSTITUTIONAL ARRANGEMENTS. Articles 24 and 25: Conference of the Parties; and Secretariat: The Secretariat introduced Articles 24 and 25, noting they had been drafted based on the mandates of the other MEAs. Australia and Canada proposed Article 24 and 25 be reviewed again later in the instrument’s negotiation. Regarding the reference to the synergies process and specifically the Extraordinary Meetings of the Conferences of the Parties to the Basel, Rotterdam and Stockholm Conventions, Brazil reminded delegates this process was subject to review in 2013 and said the reference was premature.
There were no specific interventions on Article 24. On Article 25, Canada and New Zealand supported the role of the UNEP Executive Director as proposed in the elements paper. Regarding the paragraph on cooperation and coordination between the Secretariat and the secretariats of other chemicals and wastes conventions, Switzerland commented that such coordination and cooperation should be initiated while the instrument is being developed. Japan said the Secretariat should be housed within UNEP. China suggested the establishment of a finance committee.
PART IX: SETTLEMENT OF DISPUTES. Article 26: Settlement of disputes: Canada said conciliation processes must remain optional and reciprocal.
PART X: FURTHER DEVELOPMENT OF THE CONVENTION. Article 27: Amendments to the Convention: Noting future possibilities to further reduce releases from mercury in products and processes, Norway said a technical committee may be necessary. Canada, New Zealand and Australia noted amendments would only be acceptable by expressed consent, and proposed an opt-in clause for parties.
Highlighting the need to provide parties sufficient time to meet the requirements of the treaty, the US suggested that amendments should be permitted only after a certain period after the convention has entered into force. On voting in the case that agreement on amendments cannot be reached by consensus, Brazil, with the support of Mexico, emphasized the importance of consensus and said inclusion of this would send the wrong message to capitals. The Secretariat of the Basel Convention highlighted challenges the Basel Convention had faced relating the requirements for entry into force of amendments. Several countries stressed the need for clear language on the entry into force of amendments.
Article 28: Adoption and amendment of annexes: The Zero Mercury Working Group urged delegates to consider streamlining the process for revising annexes, suggesting some revisions fall under the category of technical adjustments.
PART XI: FINAL PROVISIONS. Canada noted the need to return to these once the provisions on control measures have been drafted.
Article 29: Right to vote: There were no specific interventions on this article.
Article 30: Signature: There were no specific interventions on this article.
Article 31: Ratification, acceptance, approval or accession: Emphasizing the need to consider compliance in every aspect of the convention, the US proposed the requirement for countries to make a non-binding declaration that identifies regulations or other measures that will enable them to comply with agreements, ensuring domestic steps are taken prior to countries becoming parties.
GRULAC and Australia supported an opt-in clause for amendments for ratification, as is the case under the Stockholm Convention.
Article 32: Entry into force: The EU proposed 50 ratifications be required for the convention to enter into force. Switzerland favored 30 ratifications. China called for further discussion on the financial mechanism and the timeline for entry into force for developing countries.
Article 33: Reservations: China and GRULAC favored allowing reservations. Canada said reservations should not be allowed, noting this should be decided early on as it would affect further negotiations of the instrument.
Article 34: Withdrawal: The US suggested parties should not have to wait three years from the date the Convention comes into effect to withdraw.
Article 35: Depositary: There were no specific interventions on this article.
Article 36: Authentic texts: Upon completing the first reading of the draft elements, delegates agreed to establish a legal group, chaired by Susan Biniaz (US), mandated with reviewing and harmonizing draft provisions, beginning at INC3.
Other elements: The draft elements paper included the following annexes that were discussed within the context of the draft articles to which they relate: Annex A, Sources of mercury supply; Annex B, Mercury and mercury compounds subject to international trade and environmentally sound storage measures; Annex C, Mercury-added products; Annex D, Manufacturing processes in which mercury is used; Annex E, Atmospheric emissions; and Annex F, Sources of mercury releases to water and land.
Chair Lugris then sought proposals on elements not currently captured in the draft elements document. GRULAC suggested a section on human health.
The EU suggested adding a provision that addresses stocks of commodity mercury and of waste mercury. Switzerland suggested an explicit reference to partnerships, the need for provisions on trade in products manufactured using mercury processes, and the need to address synergies with other agreements. The African Group suggested adding an annex listing elements of national action plans regarding ASGM.
Pakistan called for a compensation mechanism for people exposed to mercury.
NEGOTIATION TRACKING TOOL: Mexico introduced the revised matrix ((UNEP(DTIE)/Hg/INC.2/CRP.2) that aims to link implementation measures and financial resources. He explained the revision was a result of intersessional consultations and invited further feedback on the tool, so that it might be utilized in the INC process.
FUTURE INCs: The Secretariat outlined its plan to convene INC3 in Ouagadougou, Burkina Faso, from 31 October - 4 November 2011. He noted if arrangements could not be finalized the meeting would be held in Nairobi, Kenya.
CLOSURE OF THE MEETING
On Friday afternoon, Chair Lugris summarized the intersessional work, requesting the Secretariat to prepare a revised text for negotiation based on the discussions at INC2, with options in square brackets, for INC3. He said countries should submit their views to the Secretariat. The Secretariat was also requested to prepare additional documents, including: a comparative analysis on possible options for the financial mechanism; and information on releases of mercury from the oil and gas industry.
He further requested the Secretariat to prepare another three documents, including on: options for synergies with the Basel, Stockholm and Rotterdam conventions; capacity-building needs; and a report on technology transfer mechanisms.
Chair Lugris also noted that the Bureau will meet intersessionally to provide guidance to the Secretariat on the preparation of the text, and said regional meetings should be held to make preparations for INC3.
Delegates then considered the draft report (UNEP(DTIE)/Hg/INC.2/L.1, Add.1 and Add.2) and it was adopted following numerous textual amendments.
In his closing remarks, Chair Lugris thanked delegates for their great cooperation and commitment at INC2, praising the pleasant and constructive atmosphere. He thanked the Government and people of Japan and specifically the sufferers of Minamata Disease, and said the INC would be directed to complete its work through the image of these victims. Many delegations praised the Secretariat’s efficiency and organization, the Chair, and the people of Japan. Chair Lugris gaveled the meeting to a close at 6:17 pm.
A BRIEF ANALYSIS OF INC2
During INC2’s opening session, Sumiko Kaneko, a storyteller at the Minamata Disease Museum, shared the story of her life in Minamata, Japan. She vividly described how the doctors were helpless as her husband and sons succumbed to mercury poisoning. Presenting their views on elements of the evolving mercury treaty, participants repeatedly referred to the need to learn from the experience of Mrs. Kaneko and other Minamata Disease victims, the human faces of mercury poisoning.
INC2 is the second of five negotiation sessions provided for by the UNEP Governing Council, and, following the general exchange of views held at INC1, this meeting marked the first opportunity for delegates to start negotiations on actual text. At the outset of the meeting, delegates commended the Secretariat on its preparation of the draft elements paper and agreed to use this as a basis for negotiation.
During the week-long meeting, participants completed a first reading of these draft elements, and this brief analysis will examine how experiences gained in implementing other treaties influenced the negotiations, while taking stock of progress towards a mercury treaty.
SYNERGIES, TEMPLATES OR LESSONS LEARNED
A recurring concern raised in interventions at INC2 related to the need to take into account the provisions already in place through other multilateral environmental agreements. Among these were the usual suspects: the Basel Convention, oft cited in discussions of provisions for mercury wastes, including transport of mercury for environmentally sound storage; the Rotterdam Convention’s procedure for prior informed consent, in addressing draft articles on trade among parties and with non-parties; and the Stockholm Convention as a potential model for the structure of the mercury treaty. The relevance of the UN Framework Convention on Climate Change was also noted, with several participants highlighting the opportunities for co-benefits from emissions reductions from coal. India also shared its experiences with projects through the Clean Development Mechanism supporting conversion to mercury-containing compact-fluorescent lamps.
When examining other conventions, there were three broad positions in play. The first focused on enhancing synergies with other treaties and avoiding duplication of efforts. The second looked to the draft elements, with an eye to ensuring what is agreed on mercury is in line with requirements of other conventions. This was proposed as a means of making sure that all parties would operate according to the same rules, even if they are not parties to some of the other chemicals and waste-related conventions.
The third focused on looking to other conventions as models to be improved upon, with participants flagging shortcomings of earlier agreements, in an effort to construct a more effective mercury treaty. Several developing countries called attention to the difficulty of accessing financial resources for implementing the Stockholm Convention. Many participants underscored weaknesses of the Basel Convention, citing the e-waste crisis faced by developing countries, the lengthy process in developing a threshold for low persistent organic pollutants (POPs) concentration at the request of the Stockholm Convention, and the 1995 Ban Amendment that is yet to enter into force.
It is still unclear to what extent delegates will embrace this latter perspective and seize the opportunity to learn from the past and include lessons learned in their new treaty. Ensuring consistency with the Stockholm Convention and using it as a partial model certainly has advantages. With 172 parties, the language and approaches used in adopted articles are palatable to many. This brings the potential benefit of efficient negotiating, and “copying and pasting” some language may free negotiators from needing to reinvent the wheel. However, mercury is a unique element with a complex set of sources and uses, and such an approach warrants careful balance. Using the Stockholm approach as a fall-back position may ensure agreement, but may come at the detriment of maximizing opportunities for crafting innovative solutions that would improve the mercury treaty’s effectiveness.
POSITIVE-LIST VERSUS NEGATIVE-LIST APPROACHES
The Stockholm Convention uses a positive-list approach to regulate persistent organic pollutants (POPs), listing in annexes only those substances subject to control measures. This model was used in preparing the draft elements for INC2. Several countries noted this would be a means of focusing parties’ implementation efforts on products of greatest concern. Others advocated a negative-list approach, banning all intentional uses of mercury as a starting point, and using an annex to list only uses that are permitted. Proponents of the negative list noted this would ensure all intentional uses of mercury are addressed in the treaty.
Some civil society participants emphasized that the key difference between the two alternatives lay in the burden of proof. They explained that under the positive list approach, countries wanting to add a use to be controlled by the treaty’s measures would have to gather the necessary information to justify its inclusion. They contrasted this with the negative list approach, under which those engaging in a specific use of mercury would have to, through countries, provide evidence that the use in question warrants an exception.
These options will be considered in greater detail at INC3. Regardless of the option advocated, delegates argued that their preference would facilitate ratification, compliance and effectiveness. The outcome of either of these approaches would be strongly dependent on the modalities of any exemption process associated with it, which, in turn, is closely tied to the resources to be made available. Technical and financial assistance will have a significant impact on which uses will be deemed to have accessible, affordable and effective alternatives.
Building on the early exchange of views at INC1, the draft elements paper clustered these questions under the heading of financial resources and technical and implementation assistance. Again, deliberations on these issues were influenced by participants’ experiences with other treaties.
The contentious negotiations on compliance committees in the context of other MEAs prompted proposals to establish instead a facilitative implementation committee. The delays encountered in reaching agreement on compliance under the Stockholm and Rotterdam Conventions spurred some participants to call for the implementation committee to be established in the treaty text rather than entrust its creation to the Conference of the Parties (COP). Concerns over the adequacy of financing under the Stockholm Convention were repeatedly cited in developing countries’ proposals that compliance with financing commitments are placed on an even keel with compliance with control measures.
The shadow of older agreements was also cast on discussions of the financial mechanism. An option modeled upon the Montreal Protocol’s Multilateral Fund was repeatedly brought forward, and many were open to exploring the advantages of a dedicated fund, notably in terms of it being under the direct control of the COP. This attribute was presented in contrast to the Stockholm Convention’s interim financial mechanism, the Global Environment Facility (GEF). Under the GEF, the Stockholm COP has a limited say in replenishment decisions, and COP guidance to the GEF on implementation priorities is cumulative, thus making it more difficult for the GEF to respond effectively to COP requests. Many countries, including the EU and Japan, preferred to work within the existing GEF structure to avoid duplication of effort.
INC2 requested the Secretariat to prepare a comparative report of options for the financial mechanism for discussion at INC3. Many stressed the importance of developing, as early as possible, a common vision on this question. Decisions on control measures, and the extent to which voluntary provisions are included in the final treaty, will be contingent on both developing countries having a clear picture of the assistance they might expect and donor countries having a solid understanding of the cost of providing assistance. Some were hopeful that INC3 would see delegates moving away from the current debate framing this as an either/or decision, and were hopeful negotiators would seize the opportunity to craft a resourceful, and perhaps more nuanced, solution to the question.
Finance and implementation is not the only divisive issue on the table. At the early stages of negotiation, positions appear dangerously entrenched on several key issues, including emissions to air, land and water, wastes, and artisanal and small-scale gold mining. Nevertheless, a positive atmosphere pervaded INC2 and several interventions underscored countries’ interests in understanding alternate viewpoints.
THE ROAD TO MINAMATA
Three INC meetings remain prior to the scheduled diplomatic conference in 2013 in Japan to adopt what delegates agreed should be called the Minamata Convention. The path ahead will be challenging. Prior to INC3 the Secretariat will be preparing, in consultation with INC Chair Fernando Lugris and the Bureau, a new document to serve as the basis for negotiation reflecting all of the views aired at INC2. This is likely to be an unwieldy document requiring delegates to come to INC3 ready to craft creative solutions to overcome divergent positions. Prior to reconvening at INC3 in late October, meeting of the COPs of the Stockholm, Rotterdam and Basel Conventions will have met in April, June and October, respectively. This could provide an excellent opportunity for negotiators to further learn from experiences in these other MEAs.
CSD Intersessional Meeting on Waste Management: This intersessional meeting, titled International Conference on Building Partnerships for Moving towards Zero Waste, will meet in Tokyo, Japan, from 16-18 February 2011, in preparation for the 19th Session of the Commission on Sustainable Development (CSD 19). The meeting is expected to address building partnerships with civil society and the private sector in the area of waste management. dates: 16-18 February 2011 location: Tokyo, Japan contact: Conference Secretariat phone: +81-3-3780-183 fax: +81-3-3780-6733 email: email@example.com www: http://www.uncrd.or.jp/env/110216csd19.htm
Twenty-sixth session of the UNEP Governing Council/Global Ministerial Environment Forum: The 26th session of the Governing Council/Global Ministerial Environment Forum (GC/GMEF) of the UN Environment Programme (UNEP) meets in February. Among other items, the Governing Council will be receive a report on the mercury negotiations, and discuss sustainable consumption and production, waste management, financing options for chemicals and wastes, governance, green economy and the establishment of an intergovernmental science-policy platform on biodiversity and ecosystem services. This will be a paperless meeting. dates: 21-24 February 2011 location: UN Offices, Nairobi, Kenya contact: Secretary, Governing Council, UNEP phone: +254-20-7623431 fax: +254-20- 7623929 email:firstname.lastname@example.org www: http://www.unep.org/gc/gc26/
Intergovernmental Preparatory Meeting for CSD 19: This meeting will prepare for the policy-year session of the Commission on Sustainable Development, which will negotiate policy options related to the thematic cluster for the CSD 18-19 cycle: transport, chemicals, waste management, mining and the Ten-Year Framework of Programmes on Sustainable Consumption and Production Patterns. dates: 28 February-4 March 2011 location: UN Headquarters, New York contact: UN Division for Sustainable Development phone: +1-212-963-8102 fax: +1-212-963-4260 email:email@example.com www: http://www.un.org/esa/dsd/csd/csd_csd19_ipm.shtml
7th Meeting of the Rotterdam Convention Chemical Review Committee: This meeting will review chemicals for inclusion under the Rotterdam Convention. dates: 28 March – 1 April 2011 location: Rome, Italy contact: Rotterdam Convention Secretariat phone: +41-22-917-8296 fax: +41-22-917-8082 email: firstname.lastname@example.org www: http://www.pic.int/
Fifth Meeting of the Conference of the Parties to the Stockholm Convention: The fifth meeting of the Conference of the Parties to the Stockholm Convention will consider the addition of endosulfan to Annex A of the Stockholm Convention, among other issues. This will be a paperless meeting. dates: 25-29 April 2011 location: Geneva, Switzerland contact: Stockholm Convention Secretariat phone: +41-22-917-8729 fax: +41-22-917-8098 email:email@example.com www: http://www.pops.int
The Arctic as a Messenger for Global Processes—Climate Change and Pollution: This meeting will consider pollution of the Arctic and climate change and its impacts on the Arctic Cryosphere. dates: 4-6 May 2011 location: Copenhagen, Denmark contact: AMAP Secretariat phone: +47-23-241-635 fax: +47-22-676-7 06 email: firstname.lastname@example.org www: www.amap.no or http://amap.no/MiscTempFiles/AMAP20_First%20Call.pdf
CSD 19: This policy-year session will negotiate policy options related to the thematic cluster for the CSD 18-19 cycle: transport, chemicals, waste management, mining and the Ten-Year Framework of Programmes on Sustainable Consumption and Production Patterns. dates: 2-13 May 2011 location: UN Headquarters, New York contact: UN Division for Sustainable Development phone: +1-212-963-8102 fax: +1-212-963-4260 email:email@example.com www: http://www.un.org/esa/dsd/csd/csd_csd19.shtml
8th Mercury Emissions From Coal Workshop: Convened by the International Energy Agency (IEA) Clean Coal Centre, the workshop aims to facilitate interaction between international experts representing utilities, governmental bodies, research institutes and commercial industries, on addressing mercury emissions from coal combustion dates: 18-20 May 2011 location: South Africa contact: IEA phone: +44-20-8780-2111 fax: +44-20-8780-1746 email:firstname.lastname@example.org www: http://mec.coalconferences.org/ibis/MECholding_page
Fifth Meeting of the Conference of the Parties to the Rotterdam Convention: The fifth meeting of the Conference of the Parties to the Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade (PIC COP 5) will consider the recommendation of the Chemical Review Committee to list endosulfan, chrysotile asbestos, alachlor, and alidcarb in Annex III to the Convention. This will be a paperless meeting. dates: 20-24 June 2011 location: Geneva, Switzerland contact: Rotterdam Convention Secretariat phone: +41-22-917-8296 fax: +41-22-917-8082 email: email@example.com www: http://www.pic.int/
10th International Conference on Mercury as a Global Pollutant: The meeting is convening under the theme “Air, Land, Sea, and Me.” The meeting aims to provide a forum for the exploration of the linkages among mercury sources to the environment, terrestrial and aquatic mercury transport and fate processes, and health risks associated with exposures of humans and wildlife to mercury. dates: 24-29 July 2011 location: Halifax, Canada contact: Secretariat phone: +1-902-422-1886 email: firstname.lastname@example.org www: http://mercury2011.org/
Intersessional Ad Hoc Open-Ended Working Group of the International Conference on Chemicals Management (ICCM OEWG): This meeting will act as a preparatory meeting for the Third International Conference on Chemicals Management. dates: 29 August - 2 September 2011 location: Belgrade, Serbia contact: SAICM Secretariat phone: +41-22-917-8532 fax: +41-22-797-3460 email:email@example.com www: http://www.saicm.org
POPRC-7: The seventh meeting of the POPs Review Committee will consider additional chemicals for listing under the Convention and respond to tasks assigned by COP5. This will be a paperless meeting. dates: 10-14 October 2011 location: Geneva, Switzerland contact: Stockholm Convention Secretariat phone: +41-22-917-8729 fax: +41-22-917-8098 email:firstname.lastname@example.org www: http://www.pops.int
Tenth meeting of the Conference of the Parties to the Basel Convention: This meeting will address a new strategic framework for the Basel Convention, among other issues. dates: 17-21 October 2011 location: Cartagena, Colombia contact: Nelson Sabogal phone: +41-22-917-8212 fax: +41-22-797-3454 email:email@example.com www: http://www.basel.int/meetings/meetings.html
Third Session of the INC to Prepare a Global Legally Binding Instrument on Mercury: This meeting is scheduled to be the third of five Intergovernmental Negotiating Committee (INC) meetings to negotiate a legally binding instrument on mercury. dates: 30 October - 4 November 2011 location: Ouagadougou, Burkina Faso phone: +41-22-917-8183 fax: +41-22-797-3460 email:firstname.lastname@example.org www: http://www.chem.unep.ch/mercury/