The Basel, Rotterdam and Stockholm Conventions on Chemicals and Wastes – Regulation, Sound Management and Governance

ECOLOMIC POLICY AND LAW Journal of Trade & Environment Studies © SPECIAL EDITION 2008-2010 The Basel, Rotterdam and Stockholm Conventions on Chemicals and Wastes – Regulation, Sound Management and Governance Edited by Professor Anne Petitpierre-Sauvain Faculty of Law, University of Geneva Published by EcoLomics International 16, bd des Philosophes, 6th floor 1205 Geneva, Switzerland http://www.EcoLomics-International.org/ [email protected] All rights reserved. This publication may be reproduced in whole or in part in any form for educational or nonprofit uses, without special permission, provided acknowledgement of the source is made. EcoLomic Policy and Law -- Special Edition 2008-2010 -- Chemicals and Wastes COMPREHENSIVE TABLE OF CONTENTS Preface: Prof. Anne Petitpierre-Sauvain vii 1) The International Management of Risk: An Overview of the Basel, Rotterdam and Stockholm Conventions Urs P. Thomas 1. Trade in Hazardous Substances and the Role of 3 Science and Technology 2. The Basel, Rotterdam, and Stockholm Conventions Regulating International Transports of Hazardous Wastes and Chemicals 6 The Basel Convention 7 The Rotterdam Convention 11 The Stockholm Convention 14 2) Strategic Approach to International Chemicals Management (SAICM): Development and Opportunities Hamoudi Shubber 1. The Origins of SAICM 16 1.1 The Emergence of Chemicals Management as a Global Issue 1.2 The 1992 Earth Summit 1.3 The Intergovernmental Forum on Chemical Safety 1.4 UNEP Governing Council 1.5 The 2002 World Summit on Sustainable Development 2. The Development of SAICM 26 2.1 Sessions of the SAICM Preparatory Committee and the International Conference on Chemicals Management 2.2 The SAICM framework 2.3 Characteristics of the SAICM development process 3. SAICM Implementation and the second session of the 33 International Conference on Chemicals Management 3.1 Enabling phase and the Quick Start Programme 3.2 National and regional implementation 3.3 The second session of the International Conference on Chemicals Management 3.4 Reporting on Progress in Implementation 3.5 Emerging policy issues 3.6 Financial Considerations 4. Conclusion 41 ii The Basel, Rotterdam and Stockholm Conventions: Regulation, Sound Management and Governance 3) Environmentally Sound Management – Towards a Coherent Framework Bridging the Basel, the Rotterdam, and the Stockholm Conventions Mirina Grosz and Pierre Portas I. Overview 45 II. ESM in Existing Legal Frameworks 47 1. The Basel Convention Framework 2. Bilateral, Multilateral and Regional Frameworks Adhering to ESM III. Rationale for Improving Coherent and Effective Linkages between the Basel, the Rotterdam, and the Stockholm Conventions 54 IV. Towards a Coherent International ESM Framework Based on Precaution and Risk Assessment 58 1. Scope of Application 2. Public/Private Addressees 3. A Two-Tiered Mechanism V. Conclusion: Moving Forward 66 4) Encouraging Environmentally Sound and Economically Viable Recycling of Used Vehicle Batteries: Lessons from the Philippines Ulrich Hoffmann 1. Introduction 70 2. High Risk Areas in the Recycling Sector in Developing Countries 71 3. Developing an Economically and Environmentally Sound 73 National Recycling Strategy 4. Possible Packages of Policy Approaches 73 A) Significant Government Intervention B) Allowing High Capacity Utilization at Licensed Smelters and Battery Manufacturers C) Combination of Approaches One and Two 5. Turning Concept into Action: a Reality Check 76 6. Lessons from the Philippine Approach 77 7. Follow-up activities with the Basel Convention 78 iii EcoLomic Policy and Law -- Special Edition 2008-2010 -- Chemicals and Wastes 5) The Rotterdam Convention on Prior Informed Consent Urs P. Thomas 1. The Emergence of the Rotterdam Convention 82 1. The Antecedents of the Rotterdam Convention 2. The Adoption of the Rotterdam Convention 2. The Negotiation of the Rotterdam Convention 86 1. The International Negotiations Committee 2. The First Four Conferences of the Parties 3. Some Policy and Law Aspects 90 1. The Principle of Mutual Supportiveness and the PIC Convention 2. Conclusion 6) Implementing the Stockholm Convention: An Increasingly Expensive Challenge Pia M. Kohler and Melanie Ashton 1. Introduction 98 2. The Stockholm Convention 98 Origins of the Convention A Precautionary and Dynamic Convention Financial Mechanism Implementation and Compliance 3. COP4: From “Dirty Dozen” to “Toxic 21” 103 Taking Stock of Implementation Broadening the Convention’s Scope Synergies Non Compliance 4. Paying for POPs 106 5. Conclusion 107 iv The Basel, Rotterdam and Stockholm Conventions: Regulation, Sound Management and Governance 7) Chemicals and Wastes – A Model for Clustering MEAs, or More Complicated than Appearances? Urs P. Thomas 1. Introduction: Chemicals and Wastes as a Global Environmental Issue 114 2. Technical Cooperation: Addressing the Preconditions for Environmentally Sound Management 116 Capacity must Precede Implementation The Importance of Tacit Knowledge 3. Challenges for Technology Transfer: Invisible Contamination, Scientific Uncertainty, and Deadly Consequences 121 Technology: Where you Stand Depends on Where You Sit The Need for a Systemic Approach which Includes the ‘Human Element’ 4. Trade-Restricting Measures of the Chemicals and Wastes Conventions and the World Trade Organization 126 The Relationship between WTO Agreements and MEAs The Key Role of the ‘Mutually Supportive’ Principle 5. To What Extent are the Chemical Conventions a Model for Clustering MEAs? 137 ° The 2010 Bali ExCOP: an Innovative Undertaking ° Strengthening Synergies through a Joint Head of the Three Conventions ° The Crucial Link between the Triple COP and UNEP’s Governing Council ° UNEP: A Long History in International Environmental Governance ° UNEP’s Strengthened Profile in International Environmental Governance 6. Conclusion: A Call for Treating Trade-Related MEAs as a Distinct Category of MEAs 149 Bibliography 153 Annex 1 - Selected Acronyms 158 Annex 2 - Selected Online Resources on Chemicals and Wastes 163 continued v EcoLomic Policy and Law -- Special Edition 2008-2010 -- Chemicals and Wastes Annex 3 - Posted with Permission: Summary of the simultaneous Extraordinary COPs to the Basel, Rotterdam and Stockholm Conventions, and the 11th Special Session of the UNEP Governing Council /Global Ministerial Environment Forum: Bali, 22-26 February 2010 Earth Negotiations Bulletin/IISD Vol. 16 No. 84 Annex 4 - Posted with Permission: Addressing Nanomaterials as an Issue of Global Concern Center for International Environmental Law (CIEL) May 2009 Annex 5 - Posted with Permission: Main Analytical Points of the UNCTAD Trade and Environment Review 2009/2010 vi The Basel, Rotterdam and Stockholm Conventions: Regulation, Sound Management and Governance PREFACE Professor Anne Petitpierre-Sauvain Faculty of Law, University of Geneva The Geneva-based conventions on chemicals and wastes show evidence of the difficult balance between different legal approaches concerning environmental goods and services, promotion of trade and protection of the environment (including health, both human and animal), long term and short term approaches, technical measures and respect of legal as well as ethical requirements. The key word to reconcile the different approaches underlying different conventions is mutual supportiveness of international agreements. Applying this concept consistently is the only answer to the complexity of the relation between international commitments often based on similar basic philosophies (such as sustainable development, a goal common to the WTO and multilateral environmental agreements), but with substantially different interests at stake. The Need to Work Together: Cooperation, Coordination and Mutual Supportiveness The successful conclusion of the extraordinary Conference of the Parties (ExCOP) of the Basel, the Rotterdam, and the Stockholm Conventions in Bali in February 2010 has demonstrated the desire of the Parties to increase synergies among these three related but distinct conventions. This ExCOP is the result of a three year long process aiming at strengthening the cooperation and coordination among them. It represents a particularly appropriate moment in time to take an analytical look at these conventions, at their legal and managerial interactions, and at some issue areas which are related to their functions. We thus hope that this publication will be helpful in facilitating international cooperation in the complex multistakeholder and interdisciplinary domains where related negotiating and administrative challenges arise every day. In addition to mutual supportiveness, systemic approaches are necessary to make the best use of the opportunities offered by the development of environment- friendly technologies on one hand, and the search for sustainable policies, on the other hand. The example of the three "chemicals" conventions is from this point of view striking. And yet they are often largely ignored in the public discussions about trade, environment, transfer of scientific knowledge and technology, even by professional negotiators. For example, the importance taken by environmentally sound management as a framework for the technical solutions that those conventions require confirms the limits of a purely "trade" approach. Yet it is often ignored when considering trade in potentially harmful goods. To address the ultimate problems of waste disposal, of handling dangerous chemicals or accepting new chemicals, it is not sufficient to open the

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