The Minamata Convention: A ComprehensiveResponse to a Global Problem

Henrik Hallgrim Eriksen and Franz Xaver Perrez

This article gives an overview of the negotiationhistory and the main elements of the Minamata Con-vention. It starts with a short description of the globalrisks posed by mercury and the findings of the globalassessment of 2002 that led to the proposal by Norwayand Switzerland in 2003 to develop a legally bindinginstrument on mercury. It then discusses the interna-tional process that led to the adoption of a mandate tonegotiate such an instrument in 2009, followed by asummary of the negotiation process. The article nextoffers an overview of the key provisions of the Conven-tion and provides an analysis of the main factorsbehind the outcome. It also analyzes particular diffi-culties of the negotiations connected to the concerns ofspecific countries. The article concludes by highlight-ing reasons why the negotiations were so successful.

INTRODUCTION

Mercury has been used for a long time because of itsunique properties, being a metal that is liquid at normaltemperatures. Some hazardous properties of mercuryhave long been known, and the negative health effectsof direct exposure to mercury vapour were recognizedearly. However, the recognition of the negative effectson human health and the environment of the organicmethyl mercury compound has been more recent.Organic mercury compounds were first described in the1800s, and there were reports of methyl mercury poi-soning in 1865.1 However, it was only a century later,following widespread contamination, that the severerisk to human health and the environment of methylmercury was recognized. The most notable event wasthe catastrophic pollution in Minamata, Japan, whereindustrial releases of methyl mercury caused the epi-demic known as the ‘Minamata disease’ in the 1950sand onwards.2

Scientific research further developed the understandingof the risks of methyl mercury at lower levels of expo-

sure, particularly with regard to the risks of impairedbrain development in children and foetuses.3 Thisresearch also made it clear that risks from mercury werenot limited to the vicinity of local releases, which hadhappened in Minamata. Through long-range transportand bioaccumulation in fish, risks to human health andenvironment could be present all around the world.Moreover, it was widely recognized that the anthropo-genic releases of mercury into the environment had beenincreasing significantly since pre-industrial times. Asmercury is an element and is not broken down in theenvironment, there was growing concern that thesereleases would contribute to a growing pool ofbioaccessible mercury in the environment.

Risk reduction measures for mercury in the 1990s wereincreasingly adopted in national legislation, includingin the European Union (EU). At the international level,there were initiatives under the North Sea Conferencesand the OSPAR Convention for the North-East Atlantic4

to reduce or eliminate mercury releases.5 Importantly,the combination of increasing global releases andpotential severe risks to human health and the environ-ment spurred the initiative to undertake a global assess-ment of mercury by the United Nations EnvironmentProgramme (UNEP).

This article will give an overview of the process that ledfrom the global mercury assessment of 2002 to theadoption of the Minamata Convention in 2013, analyzethe key provisions of the Convention and conclude byhighlighting reasons for the success of the negotiations.

1 J.R. Barrett, ‘An Uneven Path Forward: The History of Methylmer-cury Toxicity Research’, 118:8 Environmental Health Perspectives(2010), A352.2 N. Iriguchi, Minamata Bay 1932 (Nippon Hyoron Sha, 2012), at x,xiii, xiv, 59, 65–67, 115 and 133–134.

3 P. Grandjean et al., ‘Cognitive Deficit in 7-year-old Children withPrenatal Exposure to Methylmercury’, 19:6 Neurotoxicology andTeratology (1997), 417.4 Convention for the Protection of the Marine Environment of theNorth-East Atlantic (Paris, 22 September 1992; in force 25 March1998). On the North Sea Conferences, see: <http://www.ospar.org/content/content.asp?menu=00590624000000_000000_000000>.5 The Hague Declaration in 1990 committed to a 70% reduction inreleases between 1985 and 1995. See Ministerial Declaration of theThird International Conference on the Protection of the North Sea(The Hague, 8 March 1990). Mercury was also identified as a haz-ardous substance under the OSPAR Convention, with the aim to stopreleases by 2020. See OSPAR Commission, Summary RecordOSPAR 98/14/1, Annex 34, at 9.

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THE UNEP MERCURYASSESSMENT

In 2001, at the 21st session of the UNEP GoverningCouncil (UNEP GC), the United States proposed a studyon mercury, stressing that it should not prejudge anyactions. The EU and Iceland supported such an assess-ment, and there was also a strong call for such actionfrom the Arctic Council. Norway, Iceland, the Nether-lands and the Czech Republic agreed, but also proposedthat the assessment should cover other heavy metals ofconcern.6 Such a broadening of the mandate did notgain sufficient traction, and this split was to influencethe later discussions on action. The decision onmercury assessment7 asked for UNEP to undertake aglobal assessment of mercury and its compounds, toreport on the results of the assessment to the 22nd

UNEP GC, and to consider whether there is a need forassessments of other heavy metals of concern. The deci-sion included a preambular clause underlining the needto take preventive actions to protect human healthand the environment, mindful of the precautionaryapproach.

In 2003, the Global Mercury Assessment was presentedto the 22nd UNEP GC, who accepted the assessment’sfinding ‘that there is sufficient evidence of significantglobal adverse impacts from mercury and its com-pounds to warrant further international action toreduce the risks to human health and the environment’and decided to launch a Programme for InternationalAction on Mercury to facilitate and conduct technicalassistance and capacity-building activities to supportthe efforts of countries to take action on mercurypollution.8

THE CALL FOR A LEGALLYBINDING INSTRUMENTON MERCURY

The Global Mercury Assessment underlined the inter-national dimension of the mercury problem andthe need for strengthened international action. In

response, Norway and Switzerland identified the needfor a comprehensive legally binding instrument onmercury, and decided to propose this course of action tothe UNEP GC in 2003.9 Although Norway was the firstto take the initiative, it was not a member of the UNEPGC in 2003 and therefore needed a UNEP GC memberas co-sponsor to be able to formally submit its proposalto negotiate a legally binding instrument on mercury.Norway and Switzerland had a history of longstandingclose cooperation on international chemicals policy andSwitzerland immediately agreed to co-sponsor the pro-posal.10 The EU, who had implemented a comprehen-sive body of legislation to control emissions and theuse of mercury, similarly supported this early callfor a legally binding instrument, and for the NordicEU-members, mercury was an important priority.Other key supporters were the African Group and someLatin American countries.11 The proponents for a legallybinding approach to mercury argued that in light ofthe global dimension of the problem, includingtransboundary externalities and trade implications,voluntary actions alone would be insufficient to reduceuse and emissions, and that a legally binding instru-ment would be the most robust and most effectiveframework for concrete action, including internationalcooperation and support.

However, the UNEP GC was not able to agree on amandate for such negotiations in 2003. Several coun-tries, including the United States, Canada, Australiaand New Zealand, opposed a legally binding approachand advocated focusing resources on voluntary action.They argued that a legally binding instrument wouldrequire a lot of time and resources to negotiate andimplement, that it would be more costly and less effec-tive than direct voluntary action, that more time wouldbe needed to assess the effectiveness of UNEP’s volun-tary mercury programme, that a voluntary approachwould be ‘the way of getting things done on the ground’and that therefore valuable resources would better beused for more immediate and effective programmes,such as strengthening the UNEP’s mercury pro-gramme.12 Moreover, China and India argued that a

6 C. Bai et al., ‘Summary of the 21st Session of the UNEP GoverningCouncil and Second Global Ministerial Environment Forum, 5–9 Feb-ruary 2001’, 16:6 Earth Negotiations Bulletin (2001), at 9.7 UNEP GC, Decision 21/5, Mercury Assessment (9 February 2001).8 UNEP GC, Decision 22/4, Chemicals (7 February 2003), found at:<http://www.chem.unep.ch/mercury/mandate-2003.htm>, at sectionV, operative paragraphs 1 and 4 and Annex. Switzerland objected tothe name ‘Mercury Programme’, as this could eliminate possibilitiesfor further action on other heavy metals under the same framework.See S. Ganzleben et al., ‘Summary of the 22nd session of the UNEPGoverning Council and Fourth Global Ministerial Environment Forum,3–7 February 2003’, 16:30 Earth Negotiations Bulletin (2003), at 6.

9 Draft UNEP GC Decision proposed by Norway and Switzerland, onfile with the authors.10 P. Poldervaart, ‘Mercury Convention: Persistence Makes a Break-through Possible’ (2010), found at: <http://www.bafu.admin.ch/dokumentation/umwelt/09249/09365/index.html?lang=en>.11 S. Andresen, K. Rosendal and J.B. Skjærseth, ‘Why Negotiate aLegally Binding Mercury Convention?’, 13:4 International Environ-mental Agreements (2013), 425, at 425, 431 and 434; N.E. Selin andH. Selin, ‘Global Politics of Mercury Pollution: The Need for Multi-scale Governance’, 15:3 Review of European Community and Inter-national Environmental Law (2006), 258.12 See S. Andresen et al., n. 11 above, at 432; UNEP, Views Submit-ted by Governments, Intergovernmental Organizations and Non-governmental Organizations on the Progress Made on a MercuryProgramme (UN Doc. UNEP/GC.23/INF/19, 23 December 2004);S. Ganzleben et al., n. 8 above, at 6.

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legally binding approach could limit the right to eco-nomic development for which mercury emissions wereunavoidable.13

After long discussions and compromises on both sides,it was agreed to ask the UNEP Executive Director toestablish a programme for international action onmercury and to invite submissions of governments’views on medium- and long-term actions on mercury,and to compile and synthesize these views, including onthe possibility of developing a legally binding instru-ment, a non-legally binding instrument or other mea-sures or actions for consideration by the 23rd UNEPGC.14

THE ADOPTION OF A MANDATEFOR A CONVENTIONON MERCURY

The submissions by countries on views on medium- andlong-term actions on mercury revealed opposing viewswith regard to the need for a legally binding instru-ment.15 When the UNEP GC convened again in 2005,the positions were similarly contradictory. While theUnited States, Australia, Japan and Canada had reser-vations against initiating negotiations for a legallybinding instrument and instead proposed a partnershipapproach, Norway and Switzerland, supported byIceland, called for a legally binding instrument onmercury and other heavy metals of global concern,arguing that a legally binding instrument would notcompete with or replace partnerships and voluntarymeasures, but that it would ideally complement andsupport such voluntary approaches by providing astrong and committing framework.16 The EU similarlysupported a legally binding approach on mercury.17

Thus, the UNEP GC decided to further develop themercury programme, including through voluntary part-nerships; concluded that further long-term interna-tional action was required to reduce the risks frommercury; asked the UNEP Executive Director to presenta progress report to the 24th UNEP GC; and decided tothen assess the need for further action on mercury,

including the possibility of a legally binding instrument,partnerships and other actions.18

To further broaden the support for a legally bindinginstrument on mercury and other heavy metals, Swit-zerland organized a full-day side event on mercury andother metals prior to the 5th Session of the Intergovern-mental Forum on Chemicals Safety (IFCS) in 2006.During the subsequent discussions, several parties,including the African and the Asia Pacific Group, sup-ported an international legally binding instrument onmercury and other heavy metals, while the UnitedStates and the Latin America and Caribbean Group pre-ferred a non-legally binding approach.19 The IFCSfinally adopted its 2006 Budapest Statement onMercury, Lead and Cadmium, which recognized thatcurrent efforts to minimize use and reduce releases ofmercury need to be expanded and invited UNEP toassess the need for further action, including the optionof a legally binding instrument.20

One year later, at the 24th UNEP GC in 2007, thesupport for a legally binding instrument had furtherincreased. Norway and Switzerland, together withGambia, Iceland and Senegal, tabled a proposal for aglobal framework for international action on mercury,lead and cadmium, calling for the extension of UNEP’smercury programme to lead and cadmium and for ini-tiating negotiations for a legally binding instrument onmercury that is ‘open [to] the possibility to includeother chemicals of global concern should this be war-ranted’.21 The call for a binding instrument was sup-ported by the African Group, the EU, Brazil, Japan,Russia and Uruguay. The United States, noting thatpartnerships are more effective than legally bindingmandates, and Canada, seeing no need for additionalwork on lead and cadmium, introduced alternativedraft decisions, highlighting the need for further actionthrough an enhanced UNEP mercury programme. This

13 See S. Andresen et al., n. 11 above, at 432.14 Decision 22/4, n. 8 above, section V, operative paragraphs 4 and 9,and Annex.15 UNEP, State of the Environment and Contribution of the UnitedNations Environment Programme to Addressing Substantive Environ-mental Challenges, Report of the Executive Director, Addendum:Chemicals Management (UN Doc. UNEP/GC.23/3/Add.1, 6 Novem-ber 2004), at 11; and UNEP, n. 12 above.16 Draft UNEP GC Decision, n. 9 above, at paragraphs 6–9.17 C. Bai et al., ‘Summary of the 23rd Session of the UNEP GoverningCouncil/Global Ministerial Environment Forum, 21–25 February2005’, 16:47 Earth Negotiation Bulletin (2005), at 5.

18 UNEP GC, Decision 23/9, Chemicals Management (25 February2005), at operative paragraphs 22, 23 and 28–30, 34, 36 and 37.19 K. Alvarenga et al., ‘Summary of the 5th session of the Intergovern-mental Forum on Chemicals Safety, 25–29 September 2006’, 15:141Earth Negotiation Bulletin (2006), at 5.20 The Budapest Statement on Mercury, Lead and Cadmium, in:Forum V, Fifth Session of the Intergovernmental Forum on ChemicalsSafety (2006), found at: <http://www.who.int/ifcs/documents/forums/forum5/final_report_no_pl.pdf?ua=1>, Executive Summary, at 8,preambular paragraph 7 and operative paragraph 6. The UnitedStates made a statement for the record, indicating that the meetingdid not allow for a full and considered discussion of the issues andthat the Budapest Statement does not prejudge the outcome of thefuture discussions in the UNEP GC.21 UNEP, ‘A Global Framework for International Action on Mercury,Lead and Cadmium’, Proposal by Norway, Switzerland, Senegal,Gambia and Iceland for the 24th Governing Council of UNEP (UNDoc. UNEP/GC/24/L.2, 15 January 2007), proposed draft decision,paragraphs 7 and 8, on file with the authors.

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was supported by Australia, Colombia, China andIndia.22 After intense negotiations, the UNEP GC,noting the Budapest Statement, decided to furtherstrengthen its mercury programme. It concluded thatfurther long-term international action was required,and agreed to establish an ad hoc open-ended workinggroup (OEWG) of governments, regional economicintegration organizations and stakeholder representa-tives to review and assess options for enhanced volun-tary measures and new or existing international legalinstruments.23

The establishment of the OEWG created new momen-tum in favour of a mercury convention. Switzerland, inclose cooperation with Norway, initiated and led aninformal process to broaden the support for a legallybinding instrument and to narrow down the legallybinding options. In fact, until then, several options ofhow to address mercury in a legally binding mannerwere discussed, including listing methyl mercury in theStockholm Convention on Persistent Organic Pollut-ants (POPs),24 a Stockholm Convention protocol onmercury and a stand-alone convention.25 During thisprocess, it became clear that a legally binding approachcould best be realized through a new, freestandinglegally binding instrument on mercury. The primaryreason was the broad understanding that using existinginstruments such as the Stockholm Convention wouldrequire an amendment. Additionally, some countriesperceived that a new convention could become a frame-work for future regulation of other chemicals of globalconcern, such as lead and cadmium.26 Despite the factthat UNEP’s Executive Director Achim Steiner did notbelieve in a legally binding instrument for mercury,27

the support for a legally binding approach furtherincreased throughout the work of the OEWG.28 TheUnited States, supported by Argentina, Canada, China,

India and Mexico, however, continued to promote avoluntary approach, and proposed at the secondmeeting of the OEWG a ‘Programmatic OrganizationalStructure on Mercury’ (POSM) as an enhanced volun-tary partnership programme.29 However, the UnitedStates changed its opposition to a legally bindinginstrument on mercury when the Obama administra-tion entered the White House in January 2009,30 andone month later, after long negotiations, the UNEP GCfinally decided at its 25th session to launch negotiationsfor a global mercury convention.31

The agreement to launch negotiations on a comprehen-sive convention on mercury was an important success.However, the decision limited the focus of the new con-vention on mercury. The idea of leaving the door openfor other substances of global concern was subjectto intensive negotiations. The African Group, EU,Jamaica, Norway and Switzerland strongly argued forallowing the new convention, while initially focusing onmercury, to be able to address other substances at alater stage, if the international community would con-clude that such other substances should also beaddressed in a legally binding manner. Reasons for thisincluded the desire to prevent the unnecessary prolif-eration of instruments32 and the desire to have a legallybinding framework ready for lead and cadmium, whichwere considered by some States to be as problematic asmercury. However, the United States, Canada, Austra-lia, Japan and others were not ready for this flexibility.Eventually, the mandate for a new convention waslimited to mercury, but it was agreed that the mandatecould be supplemented by future decisions of the UNEPGC.33

THE NEGOTIATING PROCESS

The mandate for negotiating a global legally bindinginstrument on mercury specified that the intergovern-

22 The American proposal is contained in UN Doc. UNEP/GC/24/CRP.1 (2007); the Canadian proposal in UN Doc. UNEP/GC/24/CRP.2 (2007).23 UNEP GC, Decision 24/3, Chemicals Management (9 February2007), at preambular paragraph 4 and paragraphs 16, 17 and 28–30.24 Stockholm Convention on Persistent Organic Pollutants (Stock-holm, 22 May 2001; in force 17 May 2004) (‘Stockholm Convention’).25 See N.E. Selin and H. Selin, n. 11 above, at 264–266; S. Andresenet al., n. 11 above, at 430.26 F. Perrez and G. Karlaganis, ‘Emerging Issues in Global ChemicalsPolicy’, in: P. Wexler and J. van der Kolk (eds.), Chemicals, Environ-ment, Health: A Global Management Perspective (CRC Press, 2012),689, at 694; Federal Office for the Environment, Report from the firstGlion Like-minded Meeting (May 2008), on file with the authors.27 See S. Andresen et al., n. 11 above, at 434, footnote 12. See alsoStatement by Achim Steiner (October 2008), found at: <http://www.chem.unep.ch/mercury/OEWG2/ED_OEWG-2_%20statement.pdf>.28 See S. Andresen et al., n. 11 above, at 43. A legally bindinginstrument on mercury was explicitly supported by the African Group,the Group of Central and Eastern European Countries, the EU, theDominican Republic, Japan, Mauritius, Norway, Oman, Qatar,Russia, Senegal, Switzerland and Uruguay. T. Akanle, M. Ashton, W.Mwango and K. Xia, ‘Second Meeting of the Ad Hoc OEWG to

Review and Assess Measures to Address the Global Problem ofMercury, 6–10 October 2008’, 16:72 Earth Negotiations Bulletin(2008), at 3 and 7.29 See T. Akanle et al., n. 28 above, at 3 and 7; S. Andresen et al.,n. 11 above, at 432.30 See S. Andresen et al., n. 11 above, at 432–434 (indicating that theUnited States had a strong interest in more effective internationalregulation, as only 17% of the mercury deposited in the United Statescame from American or Canadian sources); H. Selin, ‘Global Envi-ronmental Law and Treaty-making on Hazardous Substances: TheMinamata Convention and Mercury Abatement’, 14:1 Global Environ-mental Politics (2013), 1, at 7.31 UNEP GC, Decision 25/5, Chemicals Management, includingMercury (20 February 2009), at paragraphs 26–31. See S. Andresenet al., n. 11 above, at 434–437.32 See F. Perrez and Karlaganis, n. 26 above, at 717–721.33 See Decision 25/5, n. 31 above, at paragraphs 26 and 40; A.Appleton et al., ‘Summary of the 25th Session of the UNEP Govern-ing Council/Global Ministerial Environment Forum, 16–20 February2009’, 16:78 Earth Negotiations Bulletin (2009), at 7.

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mental negotiating committee (INC) was to commenceits work in 2010 with the goal of completing it prior tothe 27th UNEP GC in early 2013, and to convene in thesecond half of 2009 an ad hoc OEWG to prepare for thework of the INC.34 Moreover, the INC was asked to‘develop a comprehensive and suitable approach tomercury’ that would include provisions on: reducingthe supply of mercury; the demand for mercury in prod-ucts and processes; international trade in mercury;atmospheric emissions of mercury; mercury-containing waste and contaminated sites; knowledgeand information; arrangements for capacity-building,technical and financial assistance; and compliance.35

The INC was also called upon to consider ‘flexibility inthat some provisions could allow countries discretion inthe implementation of their commitment’ in the devel-opment of the new convention.36 To develop such acomprehensive convention within less than four yearswas a very ambitious task, which needed careful plan-ning, strong leadership, trust in the process, and politi-cal will and constructive engagement by all.

The decision of the OEWG to structure the work of theINC by organizing five session with 7–9 monthsbetween each meeting proved to be a wise decision: itallowed for sufficient time between sessions to digestthe outcomes of the meetings, to prepare relevant docu-ments, interact informally between sessions, furtherdevelop national positions and prepare for the nextmeeting. The INC agreed – based on a proposal of theGroup of Latin American and Caribbean States(GRULAC) – to discuss substantive and horizontalissues concurrently to ensure a balance throughout thenegotiation process between commitments, supportand compliance.37

The negotiations progressed well. Throughout theprocess, Switzerland organized informal consultationsbetween key actors. Still, each of the main thematicareas of negotiations involved specific difficulties.There was broad agreement that supply should bereduced by limiting the sources of mercury and manycountries therefore favoured a total ban of mercurymining. China, however, insisted that it needed to beable to continue to mine mercury for a limited period oftime to provide raw materials for its production of vinylchloride monomer and other products, and that themining in question had legal rights to continue. Thediscussions of trade in mercury involved the problemthat the United States could not accept a trade restric-tion of imports of mercury from a non-party. Withregard to products, Switzerland and Norway, supported

by the African Group, proposed an approach to ban allmercury-containing products and processes with theexception of those listed in an annex, while the othercountries preferred to ban only listed products.38 Fur-thermore, the phasing out of mercury in dental fillingswas contentious.

Emissions to the atmosphere was one of the most dis-puted substantive areas. For some countries, strongprovisions on emissions were considered crucial giventhat the first global mercury assessment showed thatatmospheric emissions were the largest source of globalmercury pollution. They argued for binding obligationsto use best available techniques and best environmentalpractices. A few countries, however, argued that emis-sions should be addressed only with voluntary mea-sures. The particular sources of emissions that would beaddressed were also controversial. The discussions ofartisanal small-scale gold mining (ASGM) first requiredagreement on the adoption of a voluntary or a manda-tory approach;39 second, it required agreement onwhether the trade in mercury for ASGM should berestricted (this agreement was only reached in the lastround of negotiations).40 The substantive negotiationson the objective and definitions were also deferred tothe last round of negotiations as they depended on thecontent of the measures and obligations to be devel-oped.41 Interestingly, the issues that were resolved lastwere not the substantive obligations on managing oreliminating mercury risks, but questions on how torefer to the principle of common but differentiatedresponsibilities (CBDR), financing and support, andcompliance. These topics could only be agreed in apackage presented by the Chairman following all-nightmeetings of a small group of ‘Friends of the Chair’.42

After the fourth round of negotiations, many centralissues still lacked consensus, including supply andtrade of mercury, emissions, products and processes,the question of whether a specific provision on healthwas needed, finance, compliance and CBDR.43 To fosterconsensus, the Chair prepared a proposal for a compro-

34 See Decision 25/5, n. 31 above, at paragraphs 26 and 32.35 Ibid., at paragraph 27.36 Ibid., at paragraph 28.37 M. Ashton, Briefing Note on the Mercury OEWG (InternationalInstitute for Sustainable Development, 2009), found at: <http://www.iisd.ca/chemical/wginc1/brief/brief_mercury.pdf>, at 2.

38 S. Aguilar et al., ‘Summary of the Fourth Meeting of the Intergov-ernmental Negotiating Committee to Prepare a Global LegallyBinding Instrument on Mercury, 27 June–2 July 2012’, 28:15 EarthNegotiation Bulletin (2012), at 5.39 T. Kantai, J. Templeton and K. Xia, ‘Summary of the Third Meetingof the Intergovernmental Negotiating Committee to Prepare a GlobalLegally Binding Instrument on Mercury, 31 October–4 November2011’, 28:8 Earth Negotiations Bulletin (2011), at 6.40 P.M. Kohler et al., ‘Summary of the Fifth Meeting of the Intergov-ernmental Negotiating Committee to Prepare a Global LegallyBinding Instrument on Mercury, 13–19 January 2013’, 28:22 EarthNegotiations Bulletin (2013), at 10.41 M. Ashton, P. Kohler and K. Xia, ‘Summary of the Second Meetingof the Intergovernmental Negotiating Committee to Prepare a GlobalLegally Binding Instrument on Mercury, 24–28 January 2011’, 28:7Earth Negotiations Bulletin (2011), at 4; P.M. Kohler et al., n. 40above, at 4; S. Aguilar et al., n. 38 above, at 3.42 See P.M. Kohler et al., n. 40 above, at 4.43 Ibid., at 3 and 22–23.

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mise text, Japan facilitated discussions on products andprocesses, and Switzerland hosted an informal meetingwith key actors in Glion (near Geneva) two monthsprior to INC 5, where possible solutions emerged formost of the open issues. Nevertheless, as it was uncer-tain whether INC 5 (which was held in Geneva on 13–18January 2013) would be able to achieve agreement onall open issues, Switzerland prepared for a resumedINC 5 in Geneva in March 2013. To ensure that pres-sure and commitment to finalize the negotiationsduring INC 5 were maintained, only a few persons knewabout this option of a resumed INC. However, on Sat-urday morning, 19 January, at 7 am, after a long week ofintensive negotiations, INC 5 agreed on the text of theMinamata Convention on mercury, which was formallyadopted and opened for signature at the DiplomaticConference of Plenipotentiaries in Kumamoto, Japan,on 10 October 2013.

THE MINAMATA CONVENTION ANDITS KEY PROVISIONS

The Minamata Convention, negotiated in less than fouryears, is a comprehensive treaty addressing mercurythroughout its life cycle. It benefited strongly fromfactual and technical input, including from UNEP, theWorld Health Organization and civil society. It is thefirst new environmental treaty in over a decade, andis broadly seen as a proof of the potential ofmultilateralism. This section offers an overview of thekey provisions of this new treaty and provides a briefanalysis of the main factors behind the outcomes.

NAME OF THE CONVENTIONThe Convention’s name refers to the Japanese town ofMinamata where methyl mercury releases from afactory contaminated fish and led to the poisoning ofthe local population.44 The offer by Japan to host thediplomatic conference to sign the Convention in Kuma-moto (near Minamata) and to organize a ceremony inMinamata in remembrance of the Minamata victimsand the proposal to name the Convention the‘Minamata Convention on Mercury’ was broadly sup-ported by the countries concerned. The symbolic nameshould not only remind us of the tragedy of the mercurypollution that occurred in Minamata, but it should alsogenerally draw our attention to how the failure to adoptand implement adequate environmental policies canlead to inacceptable human suffering. However, it drewmixed reaction from Minamata disease victims: whilesome welcomed it, others criticized the name, arguingthat the Convention does not sufficiently reflect the

lessons from the Minamata tragedy. They argued that itis especially deficient because it does not clarify theresponsibility of polluters and thus ‘dishonours thevictims of Minamata disease’.45 Nevertheless, asGermany phrased it during the diplomatic conference,it is generally felt that using the name ‘Minamata’means that it will not only be associated with aproblem; it will also signify a solution.46

PREAMBLE AND PRINCIPLESThe preamble of the Minamata Convention factuallyrecognizes that mercury is a chemical of global concernand it notes the health concerns from exposure tomercury, the particular vulnerabilities of Arctic ecosys-tems and indigenous communities, and the lessons ofthe Minamata disease.47 Moreover, it makes explicitand implicit references to several policy concepts andprinciples commonly cited in international environ-mental practice. It refers to the principles of the RioDeclaration, including, inter alia, CBDR.48 It invokesthe principle of global or common concern by notingthat mercury is a chemical of global concern.49 It refersto future generations by highlighting the health con-cerns specifically of future generations.50 It reflects theimportance of financial, technical, technological andcapacity-building support,51 and stresses that partiesare allowed to take additional domestic measures forthe protection of human health and the environmentbeyond those foreseen by the Convention.52 Finally, bystating that trade and the environment are mutuallysupportive, that the Minamata Convention does notaffect rights and obligations under existing interna-tional agreements, and that this recital creates no

44 See N. Iriguchi, n. 2 above, at x and 59.

45 ‘Minamata Convention is Adopted’, Japan Times (10 October 2013),found at: <http://www.japantimes.co.jp/news/2013/10/10/national/minamata-convention-is-adopted/>; P.M. Kohler et al., n. 40 above, at22; IPEN, ‘Controversy Grows over Proposed Name, Minamata Con-vention’ (13 January 2013), found at: <http://www.ipen.org/news/controversy-grows-over-proposed-name-minamata-convention>.46 R. de Ferranti, P.M. Kohler and S. Malan, ‘Summary of the Diplo-matic Conference of Plenipotentiaries on the Minamata Conventionon Mercury and Its Preparatory Meeting, 7–11 October 2013’, 28:27Earth Negotiation Bulletin (2013), at 13.47 Minamata Convention on Mercury (Minamata, 19 January 2013;not yet in force), at preambular paragraphs 1, 5–7.48 Ibid., at preambular paragraph 4.49 Ibid., at preambular paragraph 1. On the principle of commonconcern, see generally T. Cottier, The Emerging Principle of CommonConcern (NCCR Trade Regulation, April 2012).50 Minamata Convention, n. 47 above, at preambular paragraph 5. Onthe concept of future generations, see, e.g., E. Agius and S. Busuttil(eds.), Future Generations and International Law (Earthscan, 1998);A. d’Amato, ‘Do We Owe a Duty to Future Generations to Preservethe Global Environment?, 84:1 American Journal of International Law(1990), 190; E.B. Weiss, In Fairness to Future Generations: Interna-tional Law, Common Patrimony, and Inter-generational Equity(Transnational, 1989).51 Minamata Convention, n. 47 above, at preambular paragraph 8.52 Ibid., at preambular paragraph 13.

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hierarchy between the Convention and other interna-tional instruments, the preamble confirms the principleof no hierarchy, mutual supportiveness and deferencebetween trade and the environment.53

Interestingly, there are no specific references to the pre-cautionary and the polluter pays principles; both are‘lumped in’ with the reaffirmation of the principles ofthe Rio Declaration.54 Precaution was referred to in theUNEP GC decision of 2001 calling for a global mercuryassessment and in the UNEP GC decision of 2005 onstrengthening UNEP’s mercury programme.55 Duringthe negotiations, delegations did not pay much atten-tion to the principle. During the final negotiations of thepreamble at INC 5, several delegations argued that ifCBDR was specifically mentioned in the Convention,precaution should also be referred to, as well as severalother principles. However, no country was reallydefending an explicit reference to precaution and del-egations were satisfied with the general reaffirmation ofthe Rio Declaration principles. One explanation for thismay be that as the risks and negative impacts ofmercury are well established and do not involve scien-tific uncertainty, mercury does in fact not raise an issueof precaution but rather an issue of prevention – andprevention has to be seen as the concept underpinningthe entire convention.

Throughout the negotiations, the polluter pays prin-ciple received support from several government delega-tions and from nongovernmental organizations in thecontext of the discussions of the preamble, mercury-containing wastes and contaminated sites, storageand finance.56 However, it remained unclear howthe polluter pays principle could and should beoperationalized and no concrete wording proposal wassubmitted during the negotiations. Delegations weresimilarly satisfied with the general reaffirmation of theRio Declaration.

DIFFERENTIATION, FLEXIBILITYAND COMMON BUTDIFFERENTIATEDRESPONSIBILITIESThe question of whether and how the Convention shoulddifferentiate between countries was one of the mostcontentious issues in the negotiations. Several develop-ing countries argued that the new instrument should,based on Principle 7 of the Rio Declaration (on CBDR),57

differentiate between developed and developing coun-tries. Other countries, however, took the view that whiledifferentiation according to responsibilities and capa-bilities may in some cases be important, such differen-tiation should be based on the specific circumstances ofcountries and reflect today’s socio-economic realitieswhere developing countries are the largest source ofatmospheric emissions and where several developingcountries have a higher per capita gross domesticproduct than some developed countries.58 A differentia-tion according to two rigid, historical classes of countrieswould therefore neither be equitable nor effective.59

The mandate for the negotiations acknowledged theneed to take into account, in addition to the other rel-evant Rio principles, the principle of CBDR as set out inthe Principle 7 of the Rio Declaration. Specifically, itcalled upon negotiators to consider ‘flexibility in thatsome provisions could allow countries discretion in theimplementation of their commitment’.60 During thenegotiations, arguments were made to introduce differ-entiation between developed and developing countriesin four areas: (i) specific obligations such as in thecontext of emissions or trade – for instance by provid-ing mandatory control measures only for developedcountries or by setting different timelines;61 (ii) compli-ance;62 (iii) financing;63 and (iv) as a general principle inthe preamble setting the context for the substantiveprovisions of the treaty.64

53 Ibid., at preambular paragraphs 10–12. On the principle of nohierarchy, mutual supportiveness and deference, see, generally, F.X.Perrez, ‘The Mutual Supportiveness of Trade and Environment’,American Society of International Law: Proceedings of the 100th

Annual Meeting (2006), 26; F.X. Perrez, ‘Risk Regulation, Precautionand Trade’, in: D. Wüger and T. Cottier (eds.), Genetic Engineeringand the World Trade System (Cambridge University Press, 2008),246.54 IPEN, ‘Guide to the New Mercury Treaty’ (2013), found at:<www.ipen.org/pdfs/ipen-booklet-ht-treaty-en.pdf>, at 2.55 UNEP GC, Decision 21/5, Mercury Assessment (9 February 2001),at preambular paragraph 6; UNEP GC, Decision 23/9, n. 18 above, atpreambular paragraph 5.56 M. Ashton, T. Kantai, J. Templeton and K. Xia, ‘Summary of theFirst Meeting of the Intergovernmental Negotiating Committee toPrepare a Global Legally Binding Instrument on Mercury, 7–11 June2010’, 28:6 Earth Negotiations Bulletin (2010), at 7; M. Ashton et al.,n. 41 above, at 2; T. Kantai et al., n. 39 above, at 8; S. Aguilar et al.,n. 38 above, at 3, 8–9; P.M. Kohler et al., n. 40 above, at 14.

57 Rio Declaration on Environment and Development, found in Reportof the UN Conference on Environment and Development (UN Doc.A/CONF.151/26/Rev.1 (Vol. I), 14 June 1992), Annex 1, Principle 7.58 World Bank, ‘GDP per Capita (current US$) for 2009–2013’, foundat: <http://data.worldbank.org/indicator/NY.GDP.PCAP.CD>.59 See T. Kantai et al., n. 39 above, at 13.60 See Decision 25/5, n. 31 above, operative paragraphs 22 and 28.61 See T. Kantai et al., n. 39 above, at 5 (Chile calling for the incor-poration of CBDR in the articles on trade) and 13 (developingcountries arguing that mandatory control measures failed to reflectsocio-economic realities); M. Ashton et al., n. 41 above, at 8 (India,referring to CBDR, cautioning against ambitious timelines and callingfor voluntary reductions rather than elimination of emissions).62 See T. Kantai et al., n. 39 above, at 9; M. Ashton et al., n. 41 above,at 10; M. Ashton et al., n. 56 above, at 5.63 See T. Kantai et al., n. 39 above, at 8; M. Ashton et al., n. 41 above,at 10.64 See P.M. Kohler et al., n. 40 above, at 5; M. Ashton et al., n. 41above, at 3. Another proposed approach – opposed by Brazil andChina – was to require significant aggregate mercury emitters to takeon additional responsibilities to control emissions. See S. Aguilaret al., n. 38 above, at 7–8.

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Countries agreed that the Convention should not differ-entiate between developed and developing countries inthe substantive provisions and obligations or withregard to the compliance procedure. A generalstatement was included in the finance article of theConvention that ‘[t]he overall effectiveness of theimplementation of this Convention by developingcountry parties will be related to the effective imple-mentation’ of that article.65 This is a factual statement,however, and clearly a much more subtle formulationthan the provision of the United Nations FrameworkConvention on Climate Change (UNFCCC), whichstates that:

The extent to which developing country parties will effec-tively implement their commitments under the Conventionwill depend on the effective implementation by developingcountry parties of their commitments under the Conventionrelated to financial resources and transfer of technology.66

In fact, while the provision of the UNFCCC is construedby some as conditioning implementation on support,this argument cannot be made with regard to theMinamata Convention. First, the overall effectivenessof the implementation by developing countries is only‘related to’ and not dependent of the effective imple-mentation of the article on financing. Second, thearticle on financing explicitly provides that each party(i.e., also each developing country party) has to under-take to provide, within its capabilities, resources for thenational implementation of the Convention.67

With regard to financing, in line with the generalapproach taken by multilateral environmental agree-ments, countries agreed to include specific articles onfinancial, capacity, technical and technology supportfor developing country parties and parties with econo-mies in transition.68 Similarly, the Secretariat shouldfacilitate assistance, particularly to developing countryparties and parties with economies in transition.69 Yetunlike the provisions of other agreements, not onlydeveloped countries are obliged to provide suchsupport: all parties, within their capabilities, are invitedto contribute to the financial mechanism;70 all partiesare called to cooperate to provide, within their respec-tive capabilities, capacity-building and technical assis-tance to developing country parties;71 and developedcountry parties and other parties within their capabili-ties shall promote and facilitate the development,

transfer and diffusion of, and access to relevant tech-nologies to developing countries.72

The reflection of the principle of CBDR in the preambleof the Convention became the focus of discussions ondifferentiation in the last phases of the negotiations.The draft negotiating text that was presented by theChair to the last negotiation round (INC5) included thesame preambular provision – ‘[r]ecognizing the impor-tance of common but differentiated responsibilities inaddressing environmental and human-health problemsassociated with the improper handling of mercury’ – aspresented in previous INCs.73 The issue of how Prin-ciple 7 of the Rio Declaration could be reflected couldnot be solved within the normal negotiations and had tobe addressed by a small Friends of the Chair group,together with the issue of financing. While Brazil inparticular insisted on the necessity to refer to Principle7, the United States and other countries argued that anunchanged repetition of the principle does not suffi-ciently reflect the changes in the socio-economic reali-ties over the last years. Worried by the use of theprinciple by some within the climate change negotia-tions to defend a non-dynamic ‘firewall’ between devel-oped and developing countries, they were concernedthat Principle 7 could later be used as an argument thatthe Convention does not have the same legal force fordeveloping countries as for developed countries andthat action by developing countries is conditional uponprior action and support by developed countries.Finally, on Saturday morning, the Chair was able topresent a compromise package according to which thepreamble recalled

the United Nations Conference on Sustainable Develop-ment’s reaffirmation of the principles of the Rio Declarationon Environment and Development, including, inter alia,common but differentiated responsibilities, and acknowl-edging States’ respective circumstances and capabilities andthe need for global action.74

Thus, while CBDR is not directly reaffirmed, its reaffir-mation by the Rio+20 Conference is recalled, andStates’ respective circumstances and capabilities areacknowledged. This acknowledgment of States’ respec-tive capabilities is setting a clear framework for thesubsequent substantive provisions of the Convention;the legal relevance of the mere recalling of an affirma-tion of Principle 7 of the Rio Declaration is, however,not very clear.

Nevertheless, while the final agreement reflects theview that the Convention should not rely on a concept of65 Minamata Convention, n. 47 above, Article 13.2.

66 United Nations Framework Convention on Climate Change (NewYork, 9 May 1992; in force 21 March 1994), Article 4.7.67 Minamata Convention, n. 47 above, Article 13.1.68 Ibid., Articles 13 and 14.69 Ibid., Article 24.2(b).70 Ibid., Article 13.12.71 Ibid., Article 14.1. See also Stockholm Convention, n. 24 above,Article 12.3.

72 Minamata Convention, n. 47 above, Article14.3.73 UNEP, Draft Text for a Global Legally Binding Instrument onMercury (UN Doc. UNEP(DTIE)/Hg/INC.5/3, 11 October 2012), foundat: <http://www.unep.org/chemicalsandwaste/Portals/9/Mercury/Documents/INC5/5_3_e_text.pdf>, at 16, preambular paragraph 2.74 Minamata Convention, n. 47 above, preambular paragraph 4; seeP.M. Kohler et al., n. 40 above, at 4.

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CBDR in the sense of dividing the world into developedand developing countries, it does provide for targeteddifferentiation and flexibility in specific substantiveprovisions. The Convention promoted flexibility byoffering parties the possibility to ask for time-limitedexemptions for phase-out dates for products and pro-cesses.75 With regard to emissions, parties may adoptdifferent measures in respect of different existingsource categories;76 and guidance on best availabletechniques (BAT) and best environmental practices(BEP) needs to take into account the difference betweennew and existing sources.77 Moreover, only parties thathave identified relevant point sources are to take mea-sures to control releases.78

With regard to ASGM, the Convention provides flexibil-ity by requiring only parties with more than insignifi-cant ASGM to develop a national action plan.79 Publicinformation, awareness and education should takeplace within a party’s capabilities, and parties need totake into account their respective circumstances andcapabilities when cooperating on research, develop-ment and monitoring.80

Finally, because the United States required specificflexibility, it was agreed: (i) that the relevant defini-tions of the Basel Convention on the Control ofTransboundary Movements of Hazardous Wastes andTheir Disposal81 apply only to the parties of the BaselConvention;82 (ii) that a party may, under certain con-ditions, allow imports from a non-party without certi-fication that the mercury is not from a not allowedsource;83 and (iii) that a party may, under certain con-ditions, adopt different measures than not allowingmanufacture, import or export of phased-out mercury-added products.84 It is difficult to find the right amountof flexibility to accommodate the specific needs of acountry.85 On the one hand, broad participation – andespecially participation by key actors – requires flexibil-ity; on the other hand, such flexibility should not under-mine consistency, coherence and multilateralism. Thespecific solutions found for the United States are cer-tainly in line with the mandate of the negotiations to

consider flexibility in the implementation of commit-ments, and they are stringent enough not to underminethe multilateral approach of the Convention. Indeed,even though the United States was not able to sign theConvention at the diplomatic conference due to theshutdown of its government, it became the first countryto ratify the Minamata Convention – a clear signal thatit was worth it to accommodate the specific Americanconcerns.

OBJECTIVE AND DEFINITIONSThe objective of the Convention is to protect humanhealth and the environment from anthropogenicemissions and releases of mercury and mercury com-pounds.86 Other options discussed during the negotia-tions focused on the minimization and, where feasible,ultimate elimination of anthropogenic mercuryreleases, on the prevention of the risk or of adverseeffects on human health and the environment, and onthe recognition of the life cycle approach.87 The agree-ment focusing on the protection of human health andthe environment from mercury takes a similar approachas the Stockholm Convention;88 however, it does notrefer to precaution and it limits the focus to the protec-tion from anthropogenic emissions and releases. As per-sistent organic pollutants are man-made, this seconddifference is self-evident.

The Convention defines in Article 2 only those technicalterms used several times throughout the treaty, whileterms used only in one provision are defined in thosespecific provisions. Thus, Article 3 on mercury supplysources and trade includes specific definitions relevantonly for that article, and ‘manufacturing processes inwhich mercury or mercury compounds are used’, ‘emis-sions’, ‘releases’ and ‘mercury waste’ are defined in therespective provisions of the Convention.89 Moreover, toensure consistency and coherence in the internationalregulation of chemicals, the Minamata Conventionadopts a similar approach to the definition of technicalterms also used in other conventions. Thus, the defini-tions of ‘best available techniques’ and ‘best environ-mental practices’ generally follow the definitions ofthose terms in the Stockholm Convention.90 However,as a non-party to the Basel Convention, the UnitedStates could not accept that the relevant definitions ofthe Basel Convention would also apply to waste coveredunder the Minamata Convention. It was thereforeagreed that the relevant Basel Convention definitions

75 Minamata Convention, n. 47 above, Article 6.76 Ibid., Article 8.6.77 Ibid., Articles 8.8(a) and 9.7(a).78 Ibid., Article 9.4.79 Ibid., Article 7.3.80 Ibid., Articles 18–19.81 Basel Convention on the Control of Transboundary Movements ofHazardous Wastes and Their Disposal (Basel, 22 March 1989; inforce 5 May 1992).82 Minamata Convention, n. 47 above, Article 11.1.83 Ibid., Article 3.8–3.10.84 Ibid., Article 4.2.85 See, e.g., D. Bodansky, The Durban Platform Negotiations: Goalsand Options (Harvard Project on Climate Agreement, 2012), at 8,indicating that: ‘Often, who gets the most out of an agreementdepends on the relative power of the players: the countries that aremost powerful are able to capture the biggest share of the gains.’

86 Minamata Convention, n. 47 above, Article 1.87 See M. Ashton et al., n. 56 above, at 4; M. Ashton et al., n. 41above, at 4; S. Aguilar et al., n. 38 above, at 3.88 Stockholm Convention, n. 24 above, Article 1.89 Minamata Convention, n. 47 above, Articles 3.1–3.2, 5.1, 8, 9 and11.90 Ibid., Article 2(b) and 2(c); Stockholm Convention, n. 24 above,Article 5(f).

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apply only to parties to the Basel Convention, and othercountries would be required to use those definitions asguidance.91 It is generally assumed that this will notlead to problems in the implementation of the Conven-tion, as most countries are party to the Basel Conven-tion and the United States is expected to employ similardefinitions and practices.

SUPPLY AND TRADEThe discussion on supply and trade focused on whethersome sources of mercury supply should be prohibited,or ‘not allowed’ as it was termed in the Convention, andon how trade should be limited or directed towardsallowed uses or waste disposal. It was agreed that nonew mercury mines could be started up, and that exist-ing mines needed to close 15 years after entry into forceat the latest.92 The only mines in operation are inKyrgyzstan and China. As Kyrgyzstan already hadannounced a conditional closure of its mines in 2009,93

the discussion essentially centred on how fast Chinawas willing and able to commit itself to closing itsmercury mining that was producing mercury for inter-nal use in China’s industry. Excess mercury from thechlor-alkali sector would be considered waste and betaken out of circulation.94

Both of these provisions were the subject of hard nego-tiations, as many countries found it essential to preventthe supply of large amounts of mercury stimulating thecontinued use of mercury in ASGM and in (allowed)products. Many countries also considered that recycledand reprocessed mercury from products and processeswould be sufficient to satisfy global demand in the longrun. However, restrictions on supply would limit theprovision of mercury for allowed uses under the Con-vention. Some countries, notably Norway, Switzerlandand the EU, had argued for a hierarchy of the differentsupply sources for mercury, with primary mercury frommining being the least preferred source, and recycledmercury being the most preferred source. They arguedfor a gradual phase-out of all sources of supply, exceptfor recycled mercury which eventually would be theonly allowed source, but no agreement was reached onthis matter. Ultimately, it was seen as being in line withthe objective of the Convention to introduce special

restrictions on the supply of mercury from primarymining and the chlor-alkali sector, and it is indeed animportant success of the Convention to limit any use ofmercury from primary mining to allowed uses underthe products and processes provisions, and excessmercury from decommissioned chlor-alkali facilities tobe taken off the market altogether. Moreover, mercuryfrom primary mining cannot be used for ASGM.95

Finally, a system of written consent was established forthe trade in mercury: export of mercury to other partiesis only allowed after informed consent; export to non-parties requires additional certification that offers anequivalent level of control; and imports from non-parties are only allowed upon certification that themercury is not from a source not allowed under theConvention, such as new mercury mining or decommis-sioned chlor-alkali factories.96

Another difficult issue that needed to be resolved con-cerned the clear position of Chile to exclude the verysmall quantities (so-called ‘trace quantities’) of mercuryfound in non-mercury minerals and metals;97 this wasresolved by inserting a special provision that excludedsuch trace quantities from the article.98

In the negotiations, the American position was that itcould not allow trade restriction on imports. Thiscreated a fundamental problem, because if the UnitedStates as a party would allow imports of mercury fromnot allowed sources, such mercury could then bere-exported to other parties. This would undermine thebasic concept to limit the supply of mercury by phasingout certain sources. The United States proposed a solu-tion that was very much targeted to its legal situation: aparty may not apply the trade restrictions on mercuryimports from non-parties, if it maintains comprehen-sive restrictions on export of mercury and has domesticmeasures in place to ensure that imported mercury ismanaged in an environmentally sound manner. Fur-thermore, the party has to notify and inform the Secre-tariat about its export restrictions and domesticmeasures and about the quantities and countries oforigins of mercury imported from non-parties. More-over, the Implementation and Compliance Committeehas to review and evaluate such information.99 Never-theless, for many countries, the trade restriction vis-à-vis non-parties was fundamental and they wereconcerned that this exemption could over time bemisused by other parties that do not have measures inplace as stringent as the American measures. Switzer-land finally made a proposal to time-limit the availabil-ity of this exemption: the possibility not to apply the91 Minamata Convention, n. 47 above, Article 11.1.

92 Ibid., Article 3.3–3.4. See also H. Selin, n. 30 above, at 7–9.93 See United Nations Institute for Training and Research, ‘KyrgizGovernment Announces Conditional Closure World’s Last RemainingExporting Mercury Mine’ (20 October 2009), found at: <http://www.unitar.org/kyrgyz-government-announces-conditional-closure-world-s-last-remaining-exporting-mercury-mine>.94 Minamata Convention, n. 47 above, Article 3.5(b).

95 Ibid., Article 3.4 and 3.5(b).96 Ibid., Article 3.6–3.8.97 See P.M. Kohler et al., n. 40 above, at 6.98 Minamata Convention, n. 47 above, Article 3.2 (b).99 Ibid., Article 3.9.

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trade restriction to non-parties ceases to be availableafter conclusion of the second meeting of the Confer-ence of the Parties, and only a party that has providednotification by then can continue to use the alternativeapproach.100 With this addition, the American proposalwas accepted.

PRODUCTSThe Minamata Convention requires parties not toallow the manufacture, import or export of mercury-added products listed in part I of Annex A after thephase-out date specified for those products, exceptwhere an exclusion is specified in the Annex itself orthe party has a registered exemption pursuant toArticle 6.101 The phase-out date was set as 2020 for allproducts in the Annex; these include most of themajor product groups such as batteries, light bulbs,switches and relays, cosmetics, pesticides, biocidesand non-electronic measuring devices. However, theUnited States could not accept the prohibition of themanufacture, import or export of mercury-addedproducts listed in part I of Annex A of the Convention.It argued that while they are effectively implementingstringent policies to address mercury-containing prod-ucts, it cannot adopt legislation at the national levelnot allowing the import of such products.102 A compro-mise could be found which was again tailored to thespecific legal situation in the United States: in prin-ciple, no party can allow the manufacture, import orexport of listed mercury-added products, but a partymay, as an alternative, indicate that it will implementdifferent measures or strategies to address listedmercury-containing products.103 Moreover, such aparty has to demonstrate that it has already reducedto a de minimis level the manufacture, import andexport of the large majority of the listed products; ithas to report to the Conference of Parties a descriptionof the measures and strategies; implement measuresand strategies for listed products for which a deminimis value has not yet been obtained; and the Con-ference of the Parties will review the process and theeffectiveness of these measures.104

Much of the negotiations were centred on whether theConvention should have a list of those products that

were banned (a ‘positive list’) or a general ban withexemptions (a ‘negative list’) or some sort of compro-mise between the two (a ‘hybrid’ approach). The AfricanGroup, Norway and Switzerland were the most vocal inadvocating the negative list approach, arguing that itwould be simple to understand and cover all uses,including future ones. Many countries, including theUnited States, Canada and several countries in the Asia-Pacific Group, were strongly in favour of the positive listapproach, arguing that it would be more practical andeasy for countries to implement, that it would be morecost-effective and that a positive list approach wouldcover most uses of mercury. The GRULAC countrieswere in favour of the hybrid approach. Japan, Jamaicaand Russia proposed a way forward on combining theproposals,105 but ultimately a positive list approach wasagreed upon at INC 4. However, there was substantialdisagreement on the regulation of dental amalgam,with some countries seeking a future prohibition andothers arguing that dental amalgam was still necessary.A compromise solution was found with a separateAnnex with a phase-down approach, which suggests areduction in the use by requiring parties to take at leasttwo of the listed measures.106 The annexes are open toamendment and review. This means that, in the longrun, all uses may still be phased out.107

PROCESSESThe Convention requires parties to not allow the use ofmercury in the processes specified in Annex B by spe-cific dates – namely 2018 for the acetaldehyde processand 2025 for the chlor-alkali process.108 For three otherprocesses, including vinyl chloride monomer (VCM)production, it establishes provisions to reduce the useof mercury.109 The restrictions on VCM production wereparticularly hard to reach agreement on since the use ofmercury in this production is only used in China, andthe country was not willing to agree on a fixed phase-out date, but rather sought to make a phase-out depen-dent on a decision of the Conference of the Parties thatmercury-free catalysts based on existing processeshave become technically and economically feasible.110

Another hard part in the negotiations was setting thephase-out date for the use of mercury in the chlor-alkaliproduction. Since it is a process that is already beingphased out internationally, most countries consideredthat 2025 was unnecessary late. However, Russiainsisted on this late phase-out date and it was finallyagreed upon at INC 5.

100 Ibid., Article 3.10.101 Ibid., Article 4.1. See also H. Selin, n. 30 above, at 9–11.102 Under United States law, in order to adopt regulations prohibitingthe manufacture, import or export of a chemical substance likemercury in a product, it has to be shown that the environmental harmfrom the existing use of the chemical outweighs the cost of suchregulation. Because of the many steps already taken to reducemercury use in the United States, the American delegation wasconcerned that it would have been impossible to make the necessaryfindings.103 Minamata Convention, n. 47 above, Article 4.2.104 Ibid.

105 See S. Aguilar et al., n. 38 above, at 5.106 Minamata Convention, n. 47 above, Article 4.3.107 Ibid., Articles 5.7–5.9.108 Ibid., Article 5.2.109 Ibid., Article 5.3.110 Ibid., Annex B.

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EXEMPTIONSFor products and processes, there is the possibility tohave a time-limited exemption for the obligations setout in the Annexes for specific products or processes.An exemption can be given for five years and can berenewed once.111 The arrangement follows the model ofthe Stockholm Convention, but it is much clearer inrestricting renewals and specifying that no party mayhave an exemption in effect at any time after ten yearsafter the phase-out date for a product or process listedin Annex A or B.112 The provisions were important insecuring agreement on phase-out dates in that coun-tries knew that they could apply for an exemption ifnecessary.

ARTISANAL AND SMALL-SCALEGOLD MININGDuring the negotiations, it became clear that ASGM isthe largest source of global atmospheric mercury emis-sions, and there was broad agreement that the newmercury convention should address it. However, whilesome countries favoured a ban on ASGM, others arguedthat this sector needs a more subtle approach, includingthe formalization of the often informal ASGM sector.113

Countries agreed to combine mandatory and voluntaryapproaches, with the Convention requiring partieswhere ASGM is more than insignificant to develop andimplement national action plans in line with the obli-gations laid out in Annex C.114 These obligations give aclear push to formalize such activities and phase out theworst practices. Although being a very large and sociallyvery complex source of mercury emissions, and actionin the area having clear trade and development impli-cations, agreement on the issue was reached at an earlystage, at INC 3.115 However, this was only after the issueof banning trade in mercury for the purposes of ASGMwas shifted to the discussions on trade. In those discus-sions, it was decided not to include an overall ban ontrade, but export of mercury from primary mining andchlor-alkali facilities is not allowed for ASGM.116

EMISSIONSEmissions of mercury to air was a crucial issue in thenegotiations.117 This was due to air emissions being a

very large source of total mercury emissions, and therequirements to reduce air emissions would greatlyaffect the Convention’s ability to protect human healthand the environment. At the same time, this was also anarea where some countries pushed for greater flexibilityas the costs to parties could be high. In particular,developing countries such as China and India were con-cerned that restrictions on mercury emissions fromcoal-fired power plants could inhibit their economicdevelopment. India continued to argue for a voluntaryapproach well into the negotiations, based on the needto increase coal-based thermal power.118 The mandateof the negotiations contained both of these aspects: itmandated countries to reduce the atmospheric emis-sions of mercury, while maintaining flexibility in thatsome provisions could allow countries discretion in theimplementation of their commitments.119 The provisionon emissions was therefore one of the most contentiousissues in the negotiations, with the focus being on thelevel of prescription/flexibility. This also gave rise to ahard debate on whether emissions were to be reduced,eliminated or merely controlled. China and India werethe most vocal in seeking emissions to be only con-trolled, whereas most other countries advocated stron-ger language. India and China proposed a ‘menu-orderapproach’ that would allow countries to fulfil obliga-tions by measures that they would themselves deter-mine in a national implementation plan.120 Otherssought clear provisions that BAT/BEP would apply.

In the end, countries agreed that Article 8 wouldrequire that emissions of mercury to air be controlled,and be reduced where feasible.121 Source categories arelisted in an Annex and include coal-fired power plants,coal-fired industrial boilers, smelting and roasting pro-cesses used in the production of non-ferrous metals,waste incineration facilities and cement clinker produc-tion facilities. For new sources in these categories,parties need to require best available techniques andbest environmental practices,122 while for existingsources, parties can choose between five differentapproaches.123 The compromise was thus one thatreflected a flexible approach with regard to existingsources, while the approach of clear binding obligationsis reflected for new sources. The obligation to applyBAT/BEP for new sources is very important since, inthe long run, all sources will eventually be new sourcesas existing sources will be closed down over time.

111 Ibid., Articles 6.1 and 6.6.112 Ibid., Article 6.9.113 See T. Kantai et al., n. 39 above, at 6 (reflecting the discussion ofvoluntary versus mandatory approaches, with Switzerland proposinga combination thereof).114 Minamata Convention, n. 47 above, Article 7.3. See also H. Selin,n. 30 above, at 11–13.115 See T. Kantai et al., n. 39 above, at 6.116 Minamata Convention, n. 47 above, Articles 3.4 and 3.5(b).117 See also H. Selin, n. 30 above, at 11–13.

118 India’s Views Regarding the Elements of a Comprehensive andSuitable Approach to a Legally Binding Instrument on Mercury, foundat: <http://www.unep.org/chemicalsandwaste/Portals/9/Mercury/Documents/INC2/India%20submission.pdf>.119 See Decision 25/5, n. 31 above, at paragraphs 27(e) and28 (a).120 See M. Ashton et al., n. 56 above, at 8–9.121 Minamata Convention, n. 47 above, Article 8.1.122 Ibid., Article 8.4.123 Ibid., Article 8.5.

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RELEASESThe release of mercury to water was not explicitly rec-ognized as an issue in the negotiations, and there wasmuch discussion on whether there was a need for aseparate provision for it. Some countries, including theUnited States and Canada, argued that the majorsources of releases would be covered in provisions onproducts and processes, storage and waste, andASGM.124 However, especially for the Latin Americangroup of countries it was highly important to addressreleases into water in a separate provision. Countrieseventually agreed that a specific provision shouldaddress releases to water from sources not covered byother provisions.125 Like emissions to air, releases ofmercury to water are to be controlled, and reducedwhere feasible.126 However, there is no annex identify-ing source categories; those not addressed in other pro-visions will need to be identified by parties.127 Releasesare to be reduced using one or several different mea-sures, including BAT/BEP.128 This mirrors theapproach taken with respect to existing sources foratmospheric emissions.

STORAGE, WASTE ANDCONTAMINATED SITESThe Convention establishes obligations for parties forthe sound management of mercury waste, for storageand for contaminated sites.129 Interim storage ofmercury and mercury compounds has to be under-taken in an environmentally sound manner, based onguidelines to be developed taking into account rel-evant guidelines under the Basel Convention.130

Mercury can only be recycled for allowed uses underthe Convention, and transport needs to be in line withprovisions of the Basel Convention. Furthermore,parties are encouraged to develop strategies to identifyand assess sites contaminated by mercury or mercurycompounds.131 The waste and storage provision wasrelatively uncontroversial and was not linked to anyother provisions. However, Chile’s concern thatmercury from byproducts of mining might be directlycovered by the waste definition needed to be resolvedby mentioning specifically that such byproducts areexcluded.132

FINANCEThe Convention states that each party, within its capa-bilities, undertakes to provide resources for nationalactivities that are intended to implement this Conven-tion.133 These resources may include domestic fundingthrough relevant policies, development strategies andnational budgets, bilateral and multilateral funding,and private sector involvement.134 This is a surprisinglymodern approach to financing as it underlines that as astarting point, it is the responsibility of each partyto provide resources for the implementation of theConvention.

Furthermore, a mechanism for external financialresources was established that includes the GlobalEnvironment Facility (GEF) and a specific programmeto support capacity-building and technical assistance indeveloping country parties and parties with economiesin transition.135 Parties also need to cooperate toprovide capacity-building and technical assistance todeveloping country parties and parties with economiesin transition.136 This includes the development, transferand diffusion of, and access to, up-to-date environmen-tally sound alternative technologies for developingcountries.

The negotiations on finance were difficult as there wereopposing views on the model of the financial mecha-nism.137 In general, most developing countries pre-ferred a new freestanding financial mechanism,following the model of the Montreal Protocol’s Multi-lateral Fund, for several reasons: the model was seen asmore responsive to the parties; it was deemed to beefficient; it had a proven track record in financing workunder the Montreal Protocol; and it could bettersupport institutional strengthening in developing coun-tries through supporting specific organizational units inthe national administrations dedicated to fulfilling obli-gations under the Protocol. The industrialized countriessought to include such a mechanism under the GEF,arguing that the GEF was the instrument that wouldbest serve the purpose, it had proven experience as thefinancial mechanism for the Stockholm Convention andit would be able to link efforts on mercury with effortsin other environmental treaties. Moreover, proponentsof the GEF as the financial mechanism argued that thecreation of new financial mechanisms when therealready are existing ones should be avoided. The idea ofsupporting organizational units in national administra-tions was also seen as problematic by several donor

124 See P.M. Kohler et al., n. 40 above, at 12.125 Minamata Convention, n. 47 above, Article 9.126 Ibid., Article 9.1.127 Ibid., Article 9.3.128 Ibid., Article 9.5.129 Ibid., Articles 10, 11 and 12130 Ibid., Articles 10.2 and 10.3.131 Ibid., Article 13.1.132 Ibid., Article 11.2.

133 Ibid., Article 13.1.134 Ibid.135 Ibid., Article 13.5.136 Ibid., Article 14.1.137 See also H. Selin, n. 30 above, at 14–15.

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countries, while others (e.g., Switzerland) supportedthe idea. In the last stage, the discussions in the contactgroup on financial resources focused on compromiseswhere having the GEF as part of the financial mecha-nism was combined with an additional ‘specific inter-national Programme to support capacity-building andtechnical assistance’.138 Thus, units were not referred toexplicitly in the final text, but ‘capacity-building andtechnical assistance’ was generally seen as possiblyincluding the concept of units. This solution was in theend linked to other issues under the Convention, suchas the preamble and the provisions on compliance.139

COMPLIANCEThe mandate for negotiating the mercury conventionspecified that it should include provisions addressingcompliance,140 which is a very contentious issue. In fact,efforts to date to agree on a compliance mechanismwithin the Rotterdam and Stockholm Conventions havenot succeeded, despite their very clear mandate that acompliance mechanism should be established. Devel-oped countries and many developing countries, includ-ing the EU, Switzerland, Norway, the United States,Canada and the African Group, argued that it wasimportant to reach agreement on all main elements of acompliance mechanism, that the provisions on compli-ance and financing should be developed and adopted inparallel, and that the compliance committee should beestablished directly in the Convention text. China andChile, however, supported by others, favoured a similarapproach to the one taken by the other chemicals con-ventions, which merely include an enabling clauseinstructing the Conference of the Parties to develop andadopt a compliance mechanism after its entry intoforce. India even favoured a voluntary compliancemechanism – a concept that seems to be contrary to theidea of the requirement to comply with legally bindingobligations of international conventions.141 While theproponents of a compliance mechanism signalled thatthey would not be ready to move faster on finance thanon compliance, those favouring a weak outcome oncompliance argued that a compliance mechanism couldonly be established once financial support was ensured.

During the negotiations, China, India, Brazil and Cubaargued against having only a compliance or implemen-tation committee, but proposed instead one or morecommittees on financial assistance, technical support,

capacity-building and implementation.142 This effort todilute the focus on compliance and implementation didnot receive sufficient support, however. At the end ofINC 4, there was broad agreement that the complianceand implementation mechanism should be supportive,facilitative, non-punitive and non-confrontational, butno agreement was achieved on whether the mechanismshould be established directly by the Convention or bythe first Conference of the Parties, and views divergedwith regard to the trigger of a compliance mechanism,composition of a compliance committee and decisionmaking. Moreover, during INC 5, China argued that theimplementation difficulties of a developing countryparty should not be regarded as non-compliance if theyare due to failure to have full access to adequate finan-cial support in a timely manner. Developed countries,however, stressed that compliance should not bedifferentiated between developed and developingcountries.143

Agreement was reached only on the last day of thenegotiations as part of a final compromise package. Itwas agreed that the Convention establishes the imple-mentation and compliance mechanism, including acommittee, to review compliance with all provisionsof the Convention.144 This mechanism shall be facilita-tive in nature and pay particular attention to therespective national capabilities and circumstances ofparties.145 The committee, consisting of 15 members,shall examine both individual and systemic issues ofimplementation and compliance and make recommen-dations to the Conference of the Parties.146 The com-mittee may consider issues based on submissions ofparties, on national reports and at the request fromthe Conference of the Parties.147 As the nationalreports have to be submitted through the Secretariatto the Conference of the Parties, the competence toconsider issues based on national reports is de facto aSecretariat trigger. Finally, the committee can takedecisions by a three-quarters majority if no consensuscan be reached.148

In light of the impasse within the Rotterdam and Stock-holm Conventions with regard to the establishment of acompliance or implementation committee, the agree-ment achieved for the Minamata Convention can beseen as groundbreaking and very progressive. Manyhave hoped after INC 5 that this positive outcome of themercury negotiations would stimulate the Stockholmand Rotterdam Conventions to reach a similar agree-ment on compliance at their subsequent meeting of theConference of the Parties. However, this hope proved to138 Minamata Convention, n. 47 above, Articles 13.6(b) and 13.9.

139 See P.M. Kohler et al., n. 40 above, at 4.140 See Decision 25/5, n. 31 above, at paragraph 27(i). On the historyof the compliance mechanism of the Convention, see also J.Templeton and P. Kohler, ‘Implementation and Compliance under theMinamata Convention on Mercury’, 23:2 Review of European, Com-parative and International Environmental Law (2014).141 See M. Ashton et al., n. 56 above, at 5–6, 12; M. Ashton et al., n.41 above, at 10; T. Kantai et al. n. 39 above, at 9.

142 See S. Aguilar et al., n. 38 above, at 9–10.143 See P.M. Kohler et al., n. 40 above, at 17.144 Minamata Convention, n. 47 above, Article 15.1.145 Ibid.146 Ibid., Articles 15.2–15.3.147 Ibid., Article 15.4148 Ibid., Article 15.6.

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be too optimistic and as of today, the two conventionshave still not been able to establish their compliancemechanisms.

HEALTHArticle 16 on health encourages parties to develop andimplement strategies and programmes to identify andprotect vulnerable populations. Although the provi-sions are not detailed, the health provision played asignificant role in the negotiations. The Latin Americancountries in particular were very clear that healthprovisions needed to be included in the Convention,and having a separate provision was important forreaching a final agreement. It was also important tofind a solution that did not have financial implications.The general wording of Article 16 fully reflects theseconcerns.

STANDARD PROVISIONSMost standard provisions did not raise difficultiesduring the negotiations. The Convention stipulates thatparties should: facilitate the exchange of informationconcerning mercury;149 promote and facilitate publicinformation, education and awareness related to theeffects of mercury and on alternatives;150 and cooperateto develop and improve, among others, inventories,modelling, impact assessments, information on alter-natives and on BAT/BEP.151 Another provision dealswith the optional development of implementationplans.152 In terms of reporting and review, each partyhas to report on the implementation of the Conven-tion,153 and the Conference of the Parties is to evaluatethe effectiveness of the Convention no later than sixyears after it enters into force and periodically thereaf-ter.154 Finally, there is a range of standard provisionson: establishing the treaty bodies (Conference of theParties and Secretariat); dispute settlement; amend-ments to the Convention and its annexes; the right tovote; signature; ratification; acceptance; approval oraccession; entry into force; reservations (which are notallowed); withdrawal; the depositary; and authentictexts.155

CONCLUSIONS

The international community identified mercury as aglobal risk that warranted international action. The sci-

entific basis was clear, and it was clear that the issuewas of global importance. While it took some time toagree upon a mandate for the new convention, negoti-ating its outcome took less than four years. The adop-tion of the Minamata Convention was seen as amilestone for chemical safety and the environment, as agroundbreaking treaty addressing a substance through-out its life cycle, and as proof that multilateralism canwork.156

The reason for its success lies in there being a clearglobal risk, and no country argued against the need forglobal action to address it. In the beginning, there was adedicated group of countries pushing for a legallybinding instrument, ensuring that the option was notoff the table even if immediate agreement was notachieved. Norway and Switzerland were the leadingcountries in proposing a new legally binding instru-ment in 2003, but many other countries soon joined thecall. The notable change in position by the UnitedStates was the decisive turning point. For developingcountries, realizing that they would have to deal withmercury nationally, there was interest to cooperateinternationally to support this work. For developedcountries, international cooperation to address therising emissions and releases in developing countrieswas seen as vital. All in all, there were clear incentives topromote success.

At a practical level, the process was very well organizedand well prepared by UNEP Chemicals. It benefitedfrom regular informal consultations between key actorsand from the substantive input from competent insti-tutions such as the World Health Organization and theUnited Nations Industrial Development Organization,as well as nongovernmental organizations such as theZero Mercury Working Group and the InternationalPOPs Elimination Network. The calm, solution-oriented and clear guidance by the Chair and the wiseplanning and substantive support by UNEP Chemicalsensured confidence in the process and trust betweenthe negotiators.

The Minamata Convention covers all stages of the lifecycle of mercury, from mining to waste management.Although it was the result of very hard negotiationsand the bridging of different views, it has clear obli-gations for all countries that will enable a significantglobal effort to protect human health and the environ-ment from the emissions and releases of mercury. TheMinamata Convention follows the model of the Basel,Rotterdam and Stockholm Conventions, and sets outthe same basic substantive obligations for all coun-tries, while providing some targeted differentiationand flexibility in specific substantive provisions, aswell as provisions to mobilize financial resources forimplementation in developing countries.

149 Ibid., Article 17.150 Ibid., Article 18.151 Ibid., Article 19.152 Ibid., Article 20.153 Ibid., Article 21.154 Ibid., Article 22.155 Ibid.. Articles 23–35. 156 See R. de Ferranti et al., n. 46 above, at 2, 9–15.

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Some would have liked to see even stronger obligations.One may argue that it does not provide a strong enoughlegal obligation on countries to effectively reduce totalanthropogenic mercury emissions and releases to theglobal environment.157 Many of the obligations willdepend on further guidance by the Conference of theParties, and on the political priority to follow up onthem.158 Moreover, the obligations set out in theAnnexes may be amended. Thus, only the future willshow if the Convention will live up to expectations andsufficiently reduce mercury emissions and releases tothe environment.

Henrik Hallgrim Eriksen is Senior Adviser with the Divi-sion for Marine Management and Pollution Control ofthe Norwegian Ministry of Climate and Environment. Heholds a Master of Economics degree (Cand. Oecon) fromthe University of Oslo.

Franz Xaver Perrez is Ambassador and Head of the Inter-national Affairs Division of Switzerland’s Federal Officefor the Environment. He holds a J.S.D. and an LL.M.from the New York University School of Law, and is anattorney at law in Bern. Dr Perrez teaches internationalenvironmental law at the University of Bern School ofLaw.

The authors have been actively involved in the negotia-tions of the Minamata Convention as lead negotiators ofthe Norwegian and the Swiss delegations, respectively,and in 2003 they tabled the first proposal for a legallybinding instrument on mercury. They are grateful forthe critical comments from David O. Buchholz, GabiEigenmann, Atle Fretheim, Bettina Hitzfeld and JohnWhitelaw. The views and ideas formulated in this contri-bution are not those of the Norwegian or Swiss govern-ments, but reflect those of the authors.

157 See P.M. Kohler et al., n. 40 above, at 15; IPEN, n. 54 above,at 1.158 See also H. Selin, n. 30 above, at 16.

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