Special Issue on International Chemicals Regulation Following the Minamata Convention
The latest edition of the Review of European, Comparative & International Environmental Law has a Special Issue on International and European Chemicals Regulation, with many articles free during its first month online. Legal frameworks are one main way through which industrial pollution are defined: terms of harm, responsibility, and circulation, some of the defining features of pollution, are debated, agreed upon, and codified in legal forums. The Minamanta Convention on Mercury is the first environmental agreement in a decade to set these terms across nations, prompting the special issue. From the editorial leading the special issue:
The end of 2013 marked the adoption of the first multilateral environmental agreement in a decade, with the Minamata Convention on Mercury seemingly countering the trend of an increasing turn to softer forms of regulation in the international environmental arena. Clearly, whether the adoption of the Minamata Convention will spark a renaissance of hard international law in the field of the environment remains to be seen. Yet the very fact that countries across the world managed to agree on a new environmental treaty in the first place is remarkable, especially following disappointments such as the Copenhagen climate summit in 2009 and the Rio+20 meeting in 2012.
TOC:
Chemicals as Regulatory Objects (pages 163–171) by Elizabeth Fisher This reflective article explores how different regulatory regimes concerned with the industrial use of chemicals conceptualize chemicals as regulatory objects in different ways. The United States Toxic Substances Control Act characterizes chemicals as risky objects, the European Union’s REACH regime characterizes chemicals as market objects and the Californian Green Chemistry Initiative characterizes chemicals as scientific objects. The malleability of chemicals as regulatory objects has implications for debates about international chemicals regulation, including the need for a more nuanced debate and greater regulatory imagination.
The Chemicals and Waste Regime as a Basis for a Comprehensive International Framework on Sustainable Management of Potentially Hazardous Materials?(pages 172–180) by Katharina Kummer Peiry Since the 1980s, the international legal framework governing the management of chemicals and wastes has developed in an ad hoc and piecemeal fashion. As the international community became aware of a problem, the response was to negotiate a treaty to address it. The 2013 Minamata Convention is the latest example. The result is an international legal framework that addresses some substances and some aspects of their management, leaving others unregulated. In today’s globalized world, there is a need for a coherent and comprehensive legal framework that reflects the ‘life cycle’ or ‘circular economy’ approach to materials management. Taking into account previous efforts, including the 2006 Strategic Approach to Chemicals Management and the synergies process of the Basel, Rotterdam and Stockholm Conventions, and considering the approach adopted by the Minamata Convention to regulate the upstream as well as the downstream aspects of the substances it addresses, this article explores ways to achieve a comprehensive and coherent global legal framework on the management of potentially hazardous materials, concluding that the current chemicals and waste regime can serve as a basis for such a framework.
Bridging the Divide between Toxic Risks and Global Chemicals Governance(pages 181–194) by Daryl Ditz and Baskut Tuncak Over the past four decades, a set of global environmental agreements has developed to address certain issues in chemicals management at the global level. In addition, the global community has proclaimed the goal of achieving the sound management of chemicals by 2020. Recognizing the need to implement existing agreements, this article examines the current cluster of global agreements for chemicals and waste, and their ability to achieve the sound management of chemicals in 2020 and beyond. The Basel, Minamata, Rotterdam and Stockholm Conventions, as well as the non-binding Strategic Approach to International Chemicals Management, are analyzed using core elements of environmental treaties, including principles and approaches of international environmental law. From this analysis, five challenges are identified: supporting implementation; ensuring adequate finance; filling global information gaps; expanding the narrow scope of current legally binding instruments; and avoiding the development of a ‘treaty thicket’ in the global governance of chemicals and waste.
The Minamata Convention: A Comprehensive Response to a Global Problem(pages 195–210) by Henrik Hallgrim Eriksen and Franz Xaver Perrez This article gives an overview of the negotiation history and the main elements of the Minamata Convention. It starts with a short description of the global risks posed by mercury and the findings of the global assessment of 2002 that led to the proposal by Norway and Switzerland in 2003 to develop a legally binding instrument on mercury. It then discusses the international process that led to the adoption of a mandate to negotiate such an instrument in 2009, followed by a summary of the negotiation process. The article next offers an overview of the key provisions of the Convention and provides an analysis of the main factors behind the outcome. It also analyzes particular difficulties of the negotiations connected to the concerns of specific countries. The article concludes by highlighting reasons why the negotiations were so successful.
Implementation and Compliance under the Minamata Convention on Mercury(pages 211–220) by Jessica Templeton and Pia Kohler What contributed to the consensus to establish an implementation and compliance mechanism during the negotiations of the 2013 Minamata Convention on Mercury? This outcome was inextricably linked to consensus on establishing a financial mechanism that was satisfactory to both developed and developing country parties. However, given the complex interlinkages between these issues, the history of discussions of compliance in closely related multilateral environmental agreements, and the wide range of interests and preferences among parties to the negotiations, the path to consensus was not clear until late in the negotiating process. While the compatibility between the proposed mechanism and States’ interests was crucial to the outcome, the role of individuals in crafting the treaty text and facilitating negotiations was also essential. Thus, a complete analysis of the path to that agreement must consider the role of individual leaders in strategically guiding delegates to identify the points at which their interests converged.
Regulating Chemical Substances under REACH: The Choice between Authorization and Restriction and the Case of Dipolar Aprotic Solvents (pages 221–245) by Lucas Bergkamp and Nicolas Herbatschek
The REACH Regulation establishes several chemical regulatory regimes, which operate, by and large, as stand-alone, but ostensibly complementary programmes. The two key REACH programmes for direct ‘command and control’ regulation of chemical risk are ‘restriction’ and ‘authorization’. In the case of substances of very high concern, both restriction and authorization are available as risk management measures. Because REACH fails to establish an independent, coherent and unbiased framework for chemical risk assessment and policy analysis of these alternative regulatory options, their deployment has been fraught with difficulties. This article reviews the REACH provisions governing the restriction and authorization programmes, and the differences, similarities and interrelations between them. In the second part, the problems arising in the application of the two regimes are illustrated with reference to the case of dipolar aprotic solvents. This case study demonstrates that the most appropriate regulatory instrument may be a regime other than REACH. The third part sets forth some recommendations to improve current practice and move towards a predictable, reasonable and balanced REACH application.
