Tag Archives: Basel Convention

How to Regulate Mercury in 6 Easy Steps (Part 4): Institutions and implementation in the Final Treaty

By: Amanda Giang and Philip Wolfe

Many moons ago, before the negotiations began, we set up some key questions about how a treaty actually works in this post. We called these questions the implementation problem: how does a treaty actually get implemented? How do we make sure that countries are actually following its provisions? How do we make sure the provisions are effective? And what does all this mean for the relationship between countries, between treaties, and between different international bodies?

Now that the negotiation is over, we can try to answer these questions for the newly minted Minimata Convention.

1.     How will the convention be implemented in practice?

While the Minimata Convention was adopted last Saturday, it won’t be officially open for signature until October, in Kumamato, Japan. Once a country has signed the convention, they will have to begin the domestic ratification process, which involves putting in place legislation that implements the treaty’s provisions.* When fifty countries have ratified the treaty, it enters into force, which means that it becomes binding by international law.While countries prepare for implementation, they will have option of preparing National Implementation Plans (NIPs). This flexible approach to implementation plans was a compromise between mostly developed countries, who pointed out that NIPs are expensive and burdensome, and mostly developing countries, who were seeking financial and technical support to better understand how to implement the treaty requirements.

* If a country does not sign the convention within a one-year period, but then would like to join, it accedes to the treaty.

2 + 3.     How can the convention ensure compliance and effectiveness? 

During the negotiation, one delegate said, “Reporting is the backbone of compliance,” referring to the importance of transparency and information exchange as a crucial incentive for following through on promises. Provisions for reporting and information sharing did not change drastically between the draft text and the finalized treaty. Reporting related to specific articles, such as supply and trade, products and processes, emissions and releases, waste and storage, and ASGM, are mandatory. Countries are also asked to “facilitate” other information sharing activities, like diffusing economically and technically feasible mercury-free alternatives to products and processes.

As many delegates noted, even if parties are complying to the treaty’s requirements, there is no guarantee that these requirements will translate into the desired objective of the treaty—to protect human health and the environment from anthropogenic emissions and releases of mercury. If everyone is in compliance, but the objective is not met, the requirements of the treaty may need to be changed. Monitoring and modelling concentrations of mercury in the environment, in biota, and in particularly vulnerable or at-risk human populations is therefore a cornerstone of evaluating effectiveness. The treaty encourages parties to cooperate on these monitoring and modelling activities, but does not mandate it. A serious remaining question then, that may be addressed in the first Conference of Parties, is whether and how much funding will be provided for these activities.

4.  How will this treaty interface with other international agreements and bodies?

The final treaty text deals with relationships to other international agreements and bodies in the preamble. The preamble recognizes that the Minimata Convention does not create a hierarchy between other international agreements, and that treaties and international bodies concerned with environment and health are mutually supportive—particularly the World Health Organization, and the Basel and Rotterdam Conventions. The preamble also makes special mention of the Rio+20 reaffirmation of the Rio Principles, with special emphasis on common but differentiated responsibilities.

During the negotiations, there was a heated debate over whether or not there should be a dedicated article for health aspects. Many countries felt that including such a section—which would focus on identifying, monitoring, providing information to, and treating adversely affected and vulnerable communities—would be out of scope and redundant given the mandate and expertise of the World Health Organization and International Labour Organization. In the end, this article was included in the text to reflect one of the key objectives of the treaty—to protect human health. However, this article recognizes the role of the WHO and ILO and calls for increased cooperation with these bodies. The article also does not require that parties undertake these health-promoting activities for affected and vulnerable populations, or set aside funding for these activities. Instead it asks that parties promote these activities.

5. How will this convention appropriately address individual parties’ conceptions of sovereignty?

These international negotiations can be thought of as a two-level game: each country is simultaneously thinking of the global sphere and its own domestic position. As such, countries are willing to sign on to the treaty if it is somehow in both its self-interest and the interest of the international community. When it came to defining a “mercury compound” in the treaty, a tension developed as countries reached for a definition that would be relevant to curbing deleterious mercury emissions and releases, but would still be broad enough as to not constrict domestic regulators. For instance, if naturally occurring trace amounts of mercury containing compounds occur in the soil of a given country, would the country be required to regulate its own topsoil? If some countries have difficulty ratifying treaties that require prior informed consent of trade, should this treaty not include prior informed consent requirements just so those countries can be party to it even if it leads to a weaker overall treaty? If this convention is able to phase-out all primary mining of mercury, will it set a precedent that could lead to the phase-out of other forms of mining in the future?

While we’ve seen some of these debates resolved, the true test of this question will come as individual parties move to sign and ratify the treaty.

Issue Overview: Mercury Supply and Trade

by Mark Staples and Danya Rumore

Mark and Danya here. During the INC5 negotiations, we’re covering issues related to mercury waste, supply and trade, and artisanal and small scale-gold mining (ASGM). Here, in our second installment, we provide an overview of mercury supply and trade, discuss what is already included in the draft treaty text about this issue, and explain what is now being discussed and will hopefully be decided in the days ahead.

All mercury used in products and processes originates from deposits in the earth’s crust. Deposits are distributed around the world, with a large concentration in western Asia and China. Mines in Spain, Italy, and Slovenia were historically the main global sources of the metal, but most mercury mining today occurs in Kyrgyzstan and China.

Once extracted, mercury is traded as a global commodity. Annual international movements of mercury have historically been on the order of 1000–2000 tonnes per year. Nations that have existing mines aren’t the only exporters of mercury; a number of developed nations have existing stocks of mercury available for export, or they act as brokers between primary sources and importing nations.

On the issue of supply, the proposed treaty text bans new primary mercury mining and the export, sale, or distribution of existing mercury (except for the uses listed in Annex D II). While Annex D has been drafted, the specifics of the Annex are still being discussed, as is the question of whether any restrictions will be placed on existing mercury-mining operations.

The proposed treaty text also requires that parties identify all mercury stocks within their territory. However, the threshold size of these stocks is not yet stipulated. We expect that this will be a subject of debate during the remaining days of the negotiations.

In terms of trade, the proposed text mandates that mercury can only be exported for allowable uses, as described by the treaty, or for environmentally sound disposal. It also requires that exporting countries obtain written consent from the recipient country. This section of the text reflects the integration of the Basel Convention, which concerns the global transboundary movement of hazardous wastes, into the mercury treaty. Of particular importance, the proposed treaty text also invokes the principle of “prior informed consent” from the Rotterdam Convention. The specific responsibilities of exporting and importing countries, as well as the extent of guidance that the Conference of the Parties is expected to provide on this front, is and will likely continue to be the source of some interesting discussion among involved parties.

The mercury supply and trade issue is now being discussed in a focused “technical articles” contact group. We hope that delegates are able to make significant progress on this front in the hours ahead so that we can move onto addressing artisanal and small-scale mining, discussing waste and storage, and—ultimately—reaching agreement on an effective global mercury treaty.

Follow us on twitter @markdstaples and @DanyaRumore as we post live updates on the negotiations!

How to Regulate Mercury in 6 Easy Steps
 (Part 3): A Simple Dictionary for Complex Concepts

by Amanda Giang and Philip Wolfe

Amanda and Philip here with a handy guide to navigating the world of intergovernmental negotiations. In Part 2, we looked at the problem of treaty implementation. In Part 3 we define some key concepts and themes when it comes to institutions and implementation.

While most of the documents for INC5 are in English, it can sometimes feel like they are written in an arcane, impenetrable language. It would take an entire dictionary (or at least a decent glossary) to really unravel all of the words and acronyms of the mercury negotiations. Here, to at least get you started, we are going to highlight four terms that will come in handy when thinking about global institutions and treaty implementation.

Bureaucratic politics

Is policy making really just well informed rational parties figuring out what’s best for the common good, or is there also an aspect of it that’s a little less… altruistic? Graham Allison, an influential political scientist, argued that policy decisions are also shaped by power struggles between different actors within a bureaucracy. These actors have different bureaucratic interests, and want to extend their influence where possible. You might not see the term “bureaucratic politics” often in official documents or hear it in floor discussion, but its important to know that it’s a strong undercurrent to the whole proceedings.

How might bureaucratic politics show up in the mercury treaty negotiations? First, there’s a question of who should be (and has the authority to be) responsible for what. For example, can the mercury treaty address health aspects explicitly (Article 20 b, up for consideration), or should this solely be the purview of the World Health Organization? The US, the EU, and Canada have taken a stance against explicitly including health concerns in the treaty, while broadly supporting global health in other domains. Some human rights groups have attacked this position as being more about bureaucratic politics than reasonable decision making in the world’s best interest.

At the level of the treaty itself, how are responsibilities going to be divided amongst committees and subsidiary bodies? What committees are needed (e.g., implementation, compliance, scientific assessment)? Who gets to sit on these committees? The answers to these questions may be as much about bureaucratic politics as they are about mercury pollution.

Common but differentiated responsibilities

In 1992, the UN held a Conference on Environment and Development (often called the Earth Summit), and established a set of 27 principles to guide sustainable global development—the Rio Declaration. One of these principles refers to nations’ common but differentiated responsibilities (CBDR). This phrase has since become a standard part of many environmental treaties and, despite being very compact, it packs a mean punch in terms of political and equity implications. CBDR acknowledges that, while working towards common environmental goals, different parties have different responsibilities for two reasons:

1.     Different states have had different contributions to global environmental degradation. Developed countries have typically, over time, contributed more to environmental degradation than less developed nations as a result of their historical development trajectories and current consumption patterns.

2.     Developed countries command significant financial and technical resources (sometimes due to environmentally exploitative development trajectories).

The Precautionary Principle

Another legacy of the Earth Summit is the Precautionary Principle. The Rio Declaration, principle 15, states: “Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.” Since the Earth Summit, the principle has been invoked in many regulatory contexts for both environmental and health reasons, often with slightly different definitions. At its heart though, the principle shifts the burden of proof: those who want to take preventative action don’t need to definitively prove harm. Instead, the burden falls on those conducting potentially environmentally or health threatening activities to prove that their actions are benign.

An interesting procedural note: the Preamble of the text of the mercury treaty regulation has yet to be formally discussed. Currently in the draft text, there is a suggestion for including a reaffirmation of the Precautionary Principle from the Rio Declaration, but there’s no indication of how that reaffirmation could be written.


Transparency may be the easiest concept on our list to define, but its no less complex or important in implementing a global regulatory instrument. Transparency is the openness, communication extent, and accountability of signatory states. Transparency promotes regulatory compliance because it allows for coordination between parties, it provides reassurance to certain parties that other parties are following through on their responsibilities, and it disincentives actors from considering non-compliance. The UN highlights the importance of transparency with respect to success of achieving good global governance.

Transparency is a crucial part of the mercury negotiations, especially with respect to reporting and monitoring emissions. One of the issues that remains to be settled is the level of transparency built into the treaty regarding trade. Because some parties involved in the mercury negotiations have ratified the Basel Convention and others have not, trade is likely to be especially tricky to reach agreement on.

Now you’re armed with a couple key terms that, we hope, will help you make sense of the current mercury negotiations. Put this knowledge to work by following our blog and Twitter (@MITMercury) as we track the developments of the INC5.

Issue Overview: Mercury Waste

by Danya Rumore and Mark Staples

Danya and Mark here. During the INC5 negotiations, we’re covering issues related to mercury waste, mercury trade, and artisanal and small scale-gold mining (ASGM). We’ll be providing overviews of each of these issues separately, to make them more digestible. Here, in the first of our three Issue Overview installments, we provide an explanation of the mercury waste issue, what is already included in the draft treaty text about this issue, and what is likely to be discussed—and hopefully decided—in the week ahead.

The use of mercury in products and processes has a long history, with evidence of human use of mercury dating as far back as 5000 BCE.

Although awareness of the health and environmental impacts of the toxic metal has resulted in reduced use of mercury in many industries, it is still present in many products and processes, including light bulbs, cosmetics, and chlor-alkili production. Many mercury-containing products eventually end up in landfills or other waste sites, and leftover mercury compounds from industrial processes often enter the waste stream. When deposited in landfills, mercury-containing waste, over time, releases mercury into the environment. More problematically, incineration and the combustion of mercury containing waste can result in a sudden and significant release of mercury directly into the atmosphere. According to the UNEP Global Mercury Assessment 2013, waste-related sources made up approximately 5% of global anthropogenic emissions in 2010.

While mercury in the waste stream is a pressing issue, the good news is that solutions are available. Controlling and reducing the use of mercury in products can prevent mercury from entering the waste stream in the first place. Since significant amounts of mercury already exist in products and waste, efforts to capture, contain, and recycle mercury-containing wastes are necessary.  Such efforts are already underway, such as the US EPA’s fluorescent lamp recycling program and guidelines in case of releases and spills. Further, emissions controls on waste incinerators can greatly reduce mercury output from waste combustion and should be implemented wherever possible.

During the INC4 negotiations in Uruguay, progress was made on the question of how to address mercury waste in the globally binding agreement. Most prominently, the draft treaty text includes the provision that all parties to the agreement shall take appropriate measures to manage mercury waste in an environmentally sound way, in accord with the Basel Convention. This part of the treaty seems to be generally accepted, although the question of how to manage the transport of mercury across international boundaries in circumstances where the Basel Convention does not apply remains unresolved.

On Monday, the articles of the draft text relevant to mercury waste were introduced in the plenary session. Switzerland, with support from the EU, called for bringing all definitions and procedures for the trans-boundary movement of mercury in line with the Basel Convention. Lebanon expressed a desire for standards specific to mercury waste disposal, and Chile called for a more clear definition of “mercury wastes”. Additionally, whether and how to make parties who have not signed or ratified the Basel Convention comply with transboundary waste movement regulations was discussed.

The draft treaty also includes text related to the identification and management of sites contaminated by mercury. This topic appears to be much more contentious than the topic of waste management. While the draft treaty includes language indicating that action shall be taken to reduce the risk presented by contaminated sites, it remains to be seen whether capacity building and financial and technical assistance will be a necessary condition of including this in the agreement. In the plenary, Japan requested deletion of the capacity building and assistance provision, while Brazil, Iran and Morocco called for its inclusion.

At the conclusion of the plenary session on the second day of official negotiations, the Chair elected to move discussions of the treaty articles on storage, waste, and contaminated sites to the contact group for selected technical articles. Before addressing these issues, the contact group must first work through the products and processes articles. For now, storage, waste, and contaminated sites are on hold. We anticipate they will be picked up again late Tuesday evening or, more likely, early in the day on Wednesday.

As developments emerge, we’ll be posting updates here on our blog and via twitter @markdstaples and @DanyaRumore.  Stay tuned!