This week, governments are gathered in Geneva to negotiate the final text of an international treaty to regulate the uses and handling of mercury. [WP] In direct response to a 270-page United Nations Environment Programme (UNEP) report citing a lack of uniform global oversight on mercury emissions, the UNEP Governing Council recognized in 2009 that a legally binding document on mercury was desperately needed for the worldwide community in light of human health and environmental concerns. The framework for these mercury regulations, developed by an intergovernmental negotiating committee, is supported by the Chemicals Branch of the UNEP Division of Technology, Industry and Economics. Though negotiations are ongoing, the ultimate goal of the proposed treaty is an international agreement that would reduce the release of mercury in the air, water and land.
The Draft Mercury Treaty
Upon the urging of the Swiss Federal Council, Geneva is currently host to the last round of intergovernmental negotiations before the talks likely culminate in the adoption of a mercury reduction treaty. Including the United States, all 147 States attending the convention are expected to sign the treaty after ratification. According to the UNEP, the draft convention will regulate the following:
- the supply of and trade in mercury;
- the use of mercury in products and industrial processes;
- the measures to be taken to reduce emissions from artisanal and small-scale gold mining;
- the measures to be taken to reduce emissions from power plants and metals production facilities;
- the storage and treatment of waste containing mercury and the management of contaminated sites;
- financial and technical support for the implementation of the convention; and
- the resolution of disputes.
In particular, the treaty would ban the sale and export of mercury from primary mines and list the products and manufacturing processes in which mercury use would be phased out. [Bloomberg BNA]
US Mercury Export Ban Act of 2008
The proposed international treaty follows on the heels of the United States Mercury Export Ban Act, which took effect January 1 of this year. Because the United States is ranked as one of the world’s top exporters of mercury, implementation of the act is expected to remove a significant amount of mercury from the global market. The Act’s three main provisions state:
- US Federal agencies are prohibited from conveying, selling or distributing elemental mercury that is under their control or jurisdiction
- Export of elemental mercury is prohibited; and
- The Department of Energy shall utilize one or more its facilities for the long-term storage of mercury generated within the U.S.
Mercury Export Ban Act, §§ 3-5, 15 U.S.C. § 2605(f), 15 U.S.C. § 2611(c), 42 U.S.C. § 6939f.
Dangers Associated with Mercury
Mercury is an extremely volatile toxin with wide-reaching risks. As the only metal that is liquid at ambient temperatures, mercury is easily absorbed into the human body or surrounding soil. UNEP’s Executive Director said in a news release on mercury pollution, “Mercury, which exists in various forms, remains a major global, regional and national challenge in terms of threats to human health and the environment.” [UN News Centre].
The effects of mercury emissions are compelling. According to a recent article by the UN News Centre, in the past 100 years, manmade emissions have caused the amount of mercury in the top layer of the world’s oceans to double. A newly-released UNEP Chemicals study reports that mercury emissions from small-scale gold mining have doubled since 2005. Global Mercury Assessment 2013, p. 10. In fact, the largest sources of mercury pollutant derive from small-scale gold mining and coal burning, which together account for roughly 62% of the annual total anthropogenic emissions to air. Id. at 31.
Mercury has come under renewed scrutiny due to human rights concerns associated with its widespread use as a tool in gold mining. Small-scale or “artisanal” gold mining, pervasive in developing countries in Latin America, Asia and Africa, has rallied in popularity due to the increasing value of gold’s worth. The Washington Post estimates around 70 countries utilize mercury in this manner, oftentimes without oversight. First-hand reports from Human Rights Watch detail the use of mercury in artisanal mining, documenting how small-scale gold miners use mercury to extract gold from ore, often with disastrous long-term health ramifications. In its 108-page report, A Poisonous Mix: Child Labor, Mercury, and Artisanal Gold Mining in Mali, Human Rights Watch claims child miners are repeatedly exposed to high concentrations of mercury; first by mixing mercury and gold with their hands and feet, then by inhaling mercury vapors while burning off the mixture over an open flame (Summary, p. 3).
The United Nations has reported that “exposure to mercury poses a direct threat to the health of some 10-15 million people who are directly involved in small-scale gold mining.” An estimated three million women and children work in the industry. Id. Mercury “can attack the cardiovascular system, the kidneys, the gastrointestinal tract, the immune system, and the lungs.” [HRW] Moreover, “[s]ymptoms of exposure include tremors, twitching, vision impairment, headaches, and memory and concentration loss. Higher levels of mercury exposure may result in kidney failure, respiratory failure, and death.” Id.
Mercury has proven harmful to the environment, as well. UNEP’s Global Mercury Assessment 2013 study claims there are significant releases into the environment “linked to contaminated sites and deforestation, with an estimated 260 tons of mercury – previously held in soils – being released into rivers and lakes.” Executive Summary, p. iii. Additionally, the study shows a twelvefold increase in mercury levels in several Arctic wildlife species over the past 150 years Id. Moreover, humans are at risk for inadvertently consuming mercury-laden foods. “Mercury is concentrated as it rises up the food chain, reaching its highest level in predator fish such as swordfish and shark that may be consumed by humans.” UNEP, Mercury: Time to Act (2013), p. 20.
Criticism and Human Rights Implications
Many believe the proposed mercury treaty doesn’t go far enough. In his January 11 Huffington Post article, environmental advocate Robert F. Kennedy, Jr. criticizes the anticipated law, stating “the mercury treaty is likely to call simply for reductions on a per facility basis, rather than an overall reduction in mercury emissions to air and water. As a result, the treaty could legitimize increased mercury pollution as the number of coal-fired power plants increases globally.” This, in turn, he concludes, will “accelerate mercury poisoning across the globe.” Id.
Other groups have expressed concern that the “current draft version of the mercury treaty does not require the identification and cleanup of contaminated sites, provides no definition of hazardous mercury waste, and offers only ‘vague options’ for controlling mercury emissions from coal-fired power plants, cement kilns, and waste incinerators that exceed a certain output threshold.” [Bloomberg BNA]
In a January 10 article titled Mercury Treaty: Last Chance to Address Health Effects, Human Rights Watch wrote of the reluctance of Western governments – including Canada, the United States and European Union members – to agree to the health provisions set forth in the proposed mercury treaty. These governments contend health law has no place in a treaty that is “primarily about the environment,” adding that, “including health strategies might interfere with the health sector and drive up the cost of the treaty’s implementation.” Id. Conversely, African and South American governments urged the treaty to include a robust health article, as many of the sufferers of mercury poisoning are inhabitants of these continents. Id.
Citing the relationship between basic environmental health and human rights, the Office of the United Nations High Commissioner for Human Rights (OHCHR) commissioned a series of reports addressing this issue. Importantly, the conclusion of the study observed, “From a review of the decisions of international treaty bodies (including courts and commissions), the experts noted that in the last decade a substantial body of case law and decisions has recognized the violation of a fundamental human right as the cause, or result, of environmental degradation.” OHCHR: Meeting of Experts on Human Rights and the Environment, Conclusions.
The report continues, “A significant number of decisions at the national and international levels have identified environmental harm to individuals or communities, especially indigenous peoples, arising as a result of violations of the rights to health, to life, to self-determination, to food and water, and to housing. Particularly in the European system, a clear connection has been made between a violation of the right to privacy and life and the right not to be subject to pollution, including the right to know whether pollution is likely to affect a particular individual or community.” Id.
Environmental rights have been constitutionally adopted in many nations; as the OHCHR states, “[t]he right to a healthy environment (or a related formulation) has been formally recognized in most national constitutions enacted since 1992. In many constitutions this right permits individuals or groups to file legal actions to protect the environment or fight against pollution. Over the past ten years there has been a growing domestic case law indicating the potential role that environmental rights may play in achieving practical protections. That case law may also be relevant for international jurisprudence.” Id.
The UN Convention on the Rights of the Child refers to aspects of environmental protection with respect to the child’s right to health. Article 24 states that governments are to take appropriate measures to combat disease and malnutrition “through the provision of adequate nutritious foods and clean drinking water, taking into consideration the dangers and risks of environmental pollution.” Art. 24(2)(c). Children are to “have access to education [in] hygiene and environmental sanitation and the prevention of accidents.” (Art. 24(2)(e).
The European Convention on Human Rights, Protocol No. 1, Article 1 “[e]nsures that every natural or legal person is entitled to the peaceful enjoyment of his possessions.” In Background Paper No. 2 of the OHCHR Human Rights and the Environment series, Professor Dinah Shelton wrote, “The European Commission accepted that pollution or other environmental harm may result in a breach of Protocol No. 1 of Article 1” (citing Rayner v. United Kingdom (1986), 47 DR 5, 14). In a report on drinking water, the World Health Organization stated, “…all people, whatever their stage of development and their social and economic conditions, have the right to have access to an adequate supply of safe drinking water.” Preface, p. 1.
The pending treaty to regulate mercury emissions may aid in addressing or protecting some of these rights, subject to the terms of the final draft which is expected to be adopted when the negotiation session concludes this Friday, January 18. [UNEP]