Trace Elements and Electrolytes, Vol. 31 - No. 22014 - Letter.docx

Trace Elements and Electrolytes, Vol. 31 - No. 2/2014 - Letter
to the editor 86
Letter
©2014 Dustri-Verlag Dr. K. Feistle
ISSN 0946-2104
DO110.5414n"EX01331
e-pub: January 22. 2014
Reconsideration of
Minamata disease
Nobuo Ishihara
The Kanagawa Health Sen/ice
Association Naka-Ku, Yokotiama, Japan
First report of methylmercury
intoxication
Sir, - Since 1958 it has been widely be-
lieved in Japan that the first report of methyl-
mercury intoxication was the report of Hunter
et al. [1]. This understanding is based on the
announcement issued in 1958 by the study
group for Minamata disease at Kumamoto
University. The study group summarized the
symptoms under the name of Humter-Russel
syndrome. The announcement indicated that
the report of Hunter et al. [1] was the first

report of methylmercury intoxication. To our
regret, this announcement was incorrect.
In the report of Hunter et al. [1] they in-
troduced clearly the reports of Edwards [2,
3], in which two lethal cases of occupational
methylmercury intoxication occurred in
1864 in the laboratory of St. Bartholomew's
Hospital in London. As the sequences of
symptoms indicated the altogether excep-
tionally poisonous nature of methylmercury.
Dr. Phipson [4,5] introduced these two cases
in ajournai named "Chemical News". These
two lethal cases were also quoted precisely
by Hepp [6] in his review about the toxic
properties of mercury and mercurial's. These
important reports [1, 4, 5, 6] were already
referable in Japan far before the start of ac-
etaldehyde production in Minamata plant
(1932). Except the report of Hunter et al. [1]
other reports have been ignored by scientists
in Japan.
The reason why the study group in Ku-
mamoto University decided the report of
Hunter et al. [ 1 ] to be the first report of meth-
ylmercury intoxication still remains unclear.
It is possible that the study group examined
only the citation of Hunter's report in a cer-
tain monograph, and did not examine the
original. Another consideration was pre-
sented by Iriguchi [7]. The decision by the
study group at Kumamoto University was
very convenient for the authorities (Ministry
of Health and Welfare (MHW), Kumamoto

Prefecture, Minamata city, the plant) and
physicians patronized by stakeholders. They
could point out that the start of acetaldehyde
production in Minamata and the dumping
of methylmercury into Minamata Bay was
8 years prior to the publication of the report
of Hunter et al. [1], and they could make an
excuse that Minamata disease was a new
disease unknown in the medical world. This
consideration is very thoughtful, and might
be correct.
The misunderstanding about the first re-
port of methylmercury intoxication should
be corrected completely in textbooks and
medical dictionaries as soon as possible.
Another doubt about the naming "Hunter-
Russel Syndrome" is the number of authors.
If the naming "Hunter-Russel Syndrome" was
based on the report of Hunter et al. [1], the
correct name should be "Hunter-Bomford-
Russel Syndrome". But, this was not the case.
This fact also indicates that the study group
of the Kumamoto University made decision
without examining the original of the report
of Hunter et al. [1].
Organic mercury formation in
the acetaldehyde production
In 1881, Kutscheroff [8] invented the
procedure of acetaldehyde production from
acetylene with inorganic mercury as cata-
lyst in sulfuric acid solution. In 1900, Hoff-
man and Sand [9] analyzed this reaction,

and reported that inorganic mercury added
as catalyst should be converted to organic
mercury. Nieuwland and Maguire [10] also
concluded the formation of organic mercxuy.
The summary of this report was introduced in
a Japanese journal in Japanese [II]. In 1916,
Wacker-Chemie started acetaldehyde produc-
tion from acetylene using inorganic mercury
as catalyst in Burghausen (Germany) at large
scale. In the end of the same year, intoxica-
tion due to organic mercury occurred among
workers in the factory [12, 13]. The formation
of organic mercuiy from inorganic mercury
added as catalyst became to be clear In 1921,
Ochi and Onozawa [14] reported a similar re-
sult. In 1921 it was reported that mercury did
not remain long in the form of inorganic mer-
Trace Elements and Electrolytes, Vol. 31 - No. 2/2014 - Letters
to the editor 87
cury, but was converted to an organic com-
pound, and that this organic compound acted
as catalyst [15, 16, 17].
These reports [9, 10, 11, 14, 15, 16, 17]
were referable in Japan prior to the start of
acetaldehyde production in the Minarnata
plant and indicated clearly that the dangers
were already common knowledge among
professionals in the manufacturing of acet-
aldehyde.
It should have been possible to warn or

inform the authorities (governments, plant)
prior to the start of the acetaldehyde produc-
tion in 1932 in the Minamata plant. But this
did not happen. Far before the outbreak of
Minamata disease, the formation of organic
mercury in the production of acetaldehyde
and the toxic properties of organic mercury
(methylmercury) were common knowledge
and referable to physicians. But nobody was
interested in such subjects.
This important information [5, 6, 9, 10,
11, 14, 15, 16, 17] has been neglected by
scientists engaged in the study of Minamata
disease. Most physicians did not know the
process of acetaldehyde production. At the
outbreak of Minamata disease most physi-
cians were not interested in getting insight
into the plant or learning about procedures
of acetaldehyde production. These important
reports, therefore, have been neglected.
It is clear that the indifference of physi-
cians to his important information resulted in
the allowance for the damping of wastes into
the sea of Minarnata, and accelerated the out-
break of Minamata disease. The responsibility
of scientists and physicians for the outbreak
of Minamata disease, therefore, is clear. Of
course, the responsibility of authorities (MHW,
Kumamoto Pref., Minamata City) is clear. In
addition, several scientists under the patronage
of stakeholders were busily engaged to deny
the methylmercury theory. Their responsibility
should be cross-examined.

Consideration of Minamata
disease as food poisoning [18]
This consideration is still minor in Japan.
Soon after the outbreak of Minamata disease,
the uptake of polluted sea food was strongly
suspected by Kitamura et al. [19] and Me Alp-
ine and Araki [20]. At this point, the local gov-
ernment of Kumamoto Prefecture considered
to apply the Food Sanitation Act. The local
government had the authority to decide the
application of this Act. The local government
of Kumamoto Prefecture, however, asked the
opinion of the MHW for the application of the
Food Sanitation Act. The chief of the Public-
Health Bureau of MHW replied in 1957 that
it was impossible to apply the Act. The reason
of this decision was that there was no clear
evidence that all seafood in the area was poi-
soned. In 1950 a serious food poisoning due
to shellfish occurred in Hmanako Lake area
(Shizuoka Prefecture). In this case, the local
government of Shizuoka Prefecture decided
quickly to apply the Food Sanitation Act with-
out consulting the MHW. The reason for the
local government of Kumamoto Prefecture
might be the anxiety to commit the compen-
sation process. Of course, the major (Kuma-
moto city) was a former important member of
the Chisso plant as one the main staffs.
This decision of Kumamoto Prefecture ac-
celerated the environmental pollution by
methylmercury and the occurrence of Mina-
mata disease. It is clear that the authorities

were not interested in the environmental pol-
lution and its health effects. Many physicians
and scientists engaged in chemical plants
were not interested in the environmental pol-
lution and its health effects.
As Minamata disease was evoked by the
consumption of polluted seafood, physicians
had to inform soon after the examination of
patients. In Japan, a physician is requested to
notify the case of food poisoning to the local
government. In the case of Minamata disease,
however, few physicians informed the local
government about patients suffering fi-om
Minamata disease due to food poisoning.
As pointed out by Iriguchi [21], we have
to keep in mind that Minamata disease was
not evoked by the Minamata area. The envi-
ronmental pollution by methylmercury ñ̂ om
the plant is the cause of Minamata disease.
Acknowledgment
The author is indebted to Professor Norio
Iriguchi (Kumamoto University), Yoshihide
Tsuda (Okayama University), and Jun'ichi
Mizumoto (Kumamoto) for their valuable
helps in collecting literatures.
Trace Elements and Electrolytes, Vol. 31 - No. 2/2014 - Letters
to the editor
Reference

[ 1 ] Hunter D, Bomford RR, Rüssel DS. Poisoning by
methylmercury compounds. Q J Med. 1940; 9:
193-213.
[2] Edwards GN. Two cases of poisoning by mercuric
methide (= methylmercury). Saint Bartholomew's
HospRep. 1865; / ; 141-144.
[3] Edwards GN. Note on the termination of the sec-
ond case of poisoning by mercuric methide. Saint
Bartholomew's Hop Rep. 1866; 2: 211-213.
[4] Phipson TL. The "Cosmos" and the poisoning by
mercuric methide. Chemical News. 1865; 12:
289-290.
[5] Phispon TL. On the toxic properties of mercuric
methide. Chemical News. 1866; 13: 47.
[6] Hepp P. Ueber Quecksilberaethylverbindungen
und ueber das Verhaeltniss der Quecksilberaethyl-
zur Quecksilbervergiftung. Archive fuer experi-
mentelle Pathologie und Pharmakologie. 1887;
2i. 91-128.
[7] Iriguchi N. Minamata Bay 1932. Tokyo: Nippon
Hyouronsha, 2012. p.l65.
[8] Kutscherojf M. Ueber eine neue Methode direkter
Addition von Wasser (Hydratation) an die Koh-
lenwasserstofFe der Acetylenereihe. Berichte der
deutschen chemischen Gesellschaft. 1881; 14:
1540-1542.
[9] Hofmann KA, Sand J. Ueber das Verhalten von

Mercurisalzen gegen Olefine. Berichte der deut-
schen chemischen Gesellschaft. 1900; 33: 1340-
1353.
[10] Nieiiwland JA, Magiiire JA. Reaction of acetylene
with acidified solution of mercury and silver salts.
JAmChemSoc. 1906; 2«; 1025-1031.
[11] Iwasaki. Reaction of acetylene with acidified so-
lution of mercury and silver salts, (summary of 11
in Japanese). Tokyo Kagaku Kaishi. 1906; 27:
1232-1233.
[12] Zangger H. Erfahrungen ueber Quecksilberver-
giftungen. Gewerbepathol Gewerbehyg. 1930; 1:
539-560.
[13] Koelsch F. Gesundheitsschaedigungen durch or-
ganische Quecksilberverbindungen. Gewerbapath
Gewerbehyg. 1937; AV 113-116.
[14] Ochi S, Onozawa Y. On the acetylene production
from acetylene [in Japanese]. Kogyo Kagaku
Zasshi. 1920; 25.-935-954.
[15] Vogt R, Nieuwland JA. The role of mercury salts
in the catalytic transformation of acetylene into
acetoaldehyde, and a new commercial process for
the manufacture of paraldehyde. J Am Chem Soc.
1921; 45. 2071-2081.
[16] Iki. The role of mercury salts in the catalytic trans-
formation of acetylene into acetoaldehyde, and a
new commercial process for the manufacture of
paraldehyde. (summary of 15 in Japanese). Kou-
gyou Kagaku Zasshi. 1922; 25: 980-981.

[17] Whitemore PC. Organic compounds of mercury.
Am Chem Soc Monograph Series. New York:
Chemical Catalogue Company, 1921. p. 26-37.
[18] Yorifuji T, Tsuda T, Harada M. Minamata disease:
catastrophic food poisoning by methylmercury
and challenges for the democracy and justis. In:
Late Lessons from early warnings: science, pre-
caution, innovation, ed by EEA, (European Envi-
ronment Agency), Chapter 5, EU, Luxemburg,
2013
[ 19] Kitamiira S, Miyata C. Tomita M, Date S. Ueda K,
Misumi H, Kojima T, Minamoto H, Kurimoto S,
Noguchi Y, Nakagawa R. Results of epidemio-
logical investigation on unknown disease affected
central Nervous system, which ocured in Mina-
mata area, [in Japanese]. Kumamoto Igaku
Zasshi. 1957; 31 (Suppl 1): 1-9.
[20] McAlpine D, Araki S. Minamata disease: an un-
usual neurological disorder caused by contami-
nated fish. Lancet. 1958; 2: 629-631.
[21] Iriguchi N. Minamata Bay, 1932. Tokyo: Nihon
Hyouronsha, 2012. pi72.
Correspondence to
Nobuo Ishihara, MD, PhD
60-1-1405 Yamashita-cho, Nakaku,
Yokohama 231-0023, Japan
Tel./Fax:+81-45-212-3050

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The Minamata Convention: A Comprehensive
Response to a Global Problem
Henrik Hallgrim Eriksen and Franz Xaver Perrez
This article gives an overview of the negotiation
history and the main elements of the Minamata Con-
vention. It starts with a short description of the global
risks posed by mercury and the findings of the global
assessment of 2002 that led to the proposal by Norway
and Switzerland in 2003 to develop a legally binding
instrument on mercury. It then discusses the interna-
tional process that led to the adoption of a mandate to
negotiate such an instrument in 2009, followed by a
summary of the negotiation process. The article next
offers an overview of the key provisions of the Conven-
tion and provides an analysis of the main factors
behind the outcome. It also analyzes particular diffi-
culties of the negotiations connected to the concerns of
specific 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 its

unique properties, being a metal that is liquid at normal
temperatures. Some hazardous properties of mercury
have long been known, and the negative health effects
of direct exposure to mercury vapour were recognized
early. However, the recognition of the negative effects
on human health and the environment of the organic
methyl mercury compound has been more recent.
Organic mercury compounds were first described in the
1800s, and there were reports of methyl mercury poi-
soning in 1865.1 However, it was only a century later,
following widespread contamination, that the severe
risk to human health and the environment of methyl
mercury was recognized. The most notable event was
the catastrophic pollution in Minamata, Japan, where
industrial releases of methyl mercury caused the epi-
demic known as the ‘Minamata disease’ in the 1950s
and onwards.2
Scientific research further developed the understanding
of the risks of methyl mercury at lower levels of expo-
sure, particularly with regard to the risks of impaired
brain development in children and foetuses.3 This
research also made it clear that risks from mercury were
not limited to the vicinity of local releases, which had
happened in Minamata. Through long-range transport
and bioaccumulation in fish, risks to human health and
environment could be present all around the world.
Moreover, it was widely recognized that the anthropo-
genic releases of mercury into the environment had been
increasing significantly since pre-industrial times. As
mercury is an element and is not broken down in the
environment, there was growing concern that these
releases would contribute to a growing pool of
bioaccessible mercury in the environment.

Risk reduction measures for mercury in the 1990s were
increasingly adopted in national legislation, including
in the European Union (EU). At the international level,
there were initiatives under the North Sea Conferences
and the OSPAR Convention for the North-East Atlantic4
to reduce or eliminate mercury releases.5 Importantly,
the combination of increasing global releases and
potential severe risks to human health and the environ-
ment spurred the initiative to undertake a global assess-
ment of mercury by the United Nations Environment
Programme (UNEP).
This article will give an overview of the process that led
from the global mercury assessment of 2002 to the
adoption of the Minamata Convention in 2013, analyze
the key provisions of the Convention and conclude by
highlighting 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
with
Prenatal Exposure to Methylmercury’, 19:6 Neurotoxicology
and
Teratology (1997), 417.
4 Convention for the Protection of the Marine Environment of
the
North-East Atlantic (Paris, 22 September 1992; in force 25

March
1998). 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
in
releases between 1985 and 1995. See Ministerial Declaration of
the
Third 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
stop
releases by 2020. See OSPAR Commission, Summary Record
OSPAR 98/14/1, Annex 34, at 9.
bs_bs_banner
Review of European Community & International Environmental
Law
RECIEL 23 (2) 2014. ISSN 2050-0386 DOI: 10.1111/reel.12079
© 2014 John Wiley & Sons Ltd, 9600 Garsington Road, Oxford
OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA.
195
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00_000000_000000
http://www.ospar.org/content/content.asp?menu=005906240000
00_000000_000000
THE UNEP MERCURY

ASSESSMENT
In 2001, at the 21st session of the UNEP Governing
Council (UNEP GC), the United States proposed a study
on mercury, stressing that it should not prejudge any
actions. The EU and Iceland supported such an assess-
ment, and there was also a strong call for such action
from the Arctic Council. Norway, Iceland, the Nether-
lands and the Czech Republic agreed, but also proposed
that the assessment should cover other heavy metals of
concern.6 Such a broadening of the mandate did not
gain sufficient traction, and this split was to influence
the later discussions on action. The decision on
mercury assessment7 asked for UNEP to undertake a
global assessment of mercury and its compounds, to
report on the results of the assessment to the 22nd
UNEP GC, and to consider whether there is a need for
assessments of other heavy metals of concern. The deci-
sion included a preambular clause underlining the need
to take preventive actions to protect human health
and the environment, mindful of the precautionary
approach.
In 2003, the Global Mercury Assessment was presented
to the 22nd UNEP GC, who accepted the assessment’s
finding ‘that there is sufficient evidence of significant
global adverse impacts from mercury and its com-
pounds to warrant further international action to
reduce the risks to human health and the environment’
and decided to launch a Programme for International
Action on Mercury to facilitate and conduct technical
assistance and capacity-building activities to support
the efforts of countries to take action on mercury
pollution.8

THE CALL FOR A LEGALLY
BINDING INSTRUMENT
ON MERCURY
The Global Mercury Assessment underlined the inter-
national dimension of the mercury problem and
the need for strengthened international action. In
response, Norway and Switzerland identified the need
for a comprehensive legally binding instrument on
mercury, and decided to propose this course of action to
the UNEP GC in 2003.9 Although Norway was the first
to take the initiative, it was not a member of the UNEP
GC in 2003 and therefore needed a UNEP GC member
as co-sponsor to be able to formally submit its proposal
to negotiate a legally binding instrument on mercury.
Norway and Switzerland had a history of longstanding
close cooperation on international chemicals policy and
Switzerland immediately agreed to co-sponsor the pro-
posal.10 The EU, who had implemented a comprehen-
sive body of legislation to control emissions and the
use of mercury, similarly supported this early call
for a legally binding instrument, and for the Nordic
EU-members, mercury was an important priority.
Other key supporters were the African Group and some
Latin American countries.11 The proponents for a legally
binding approach to mercury argued that in light of
the global dimension of the problem, including
transboundary externalities and trade implications,
voluntary actions alone would be insufficient to reduce
use and emissions, and that a legally binding instru-
ment would be the most robust and most effective
framework for concrete action, including international
cooperation and support.
However, the UNEP GC was not able to agree on a

mandate for such negotiations in 2003. Several coun-
tries, including the United States, Canada, Australia
and New Zealand, opposed a legally binding approach
and advocated focusing resources on voluntary action.
They argued that a legally binding instrument would
require a lot of time and resources to negotiate and
implement, that it would be more costly and less effec-
tive than direct voluntary action, that more time would
be needed to assess the effectiveness of UNEP’s volun-
tary mercury programme, that a voluntary approach
would be ‘the way of getting things done on the ground’
and that therefore valuable resources would better be
used 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
Governing
Council 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
section
V, operative paragraphs 1 and 4 and Annex. Switzerland
objected to
the name ‘Mercury Programme’, as this could eliminate
possibilities
for further action on other heavy metals under the same
framework.
See S. Ganzleben et al., ‘Summary of the 22nd session of the
UNEP
Governing 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, on
file 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 a
Legally Binding Mercury Convention?’, 13:4 International
Environ-
mental Agreements (2013), 425, at 425, 431 and 434; N.E. Selin
and
H. 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 Mercury
Programme (UN Doc. UNEP/GC.23/INF/19, 23 December
2004);
S. Ganzleben et al., n. 8 above, at 6.
HENRIK HALLGRIM ERIKSEN AND FRANZ XAVER
PERREZ RECIEL 23 (2) 2014
© 2014 John Wiley & Sons Ltd
196

http://www.chem.unep.ch/mercury/mandate-2003.htm
http://www.bafu.admin.ch/dokumentation/umwelt/09249/09365/
index.html?lang=en
http://www.bafu.admin.ch/dokumentation/umwelt/09249/09365/
index.html?lang=en
legally binding approach could limit the right to eco-
nomic development for which mercury emissions were
unavoidable.13
After long discussions and compromises on both sides,
it was agreed to ask the UNEP Executive Director to
establish a programme for international action on
mercury and to invite submissions of governments’
views on medium- and long-term actions on mercury,
and to compile and synthesize these views, including on
the possibility of developing a legally binding instru-
ment, a non-legally binding instrument or other mea-
sures or actions for consideration by the 23rd UNEP
GC.14
THE ADOPTION OF A MANDATE
FOR A CONVENTION
ON MERCURY
The submissions by countries on views on medium- and
long-term actions on mercury revealed opposing views
with 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 the
United States, Australia, Japan and Canada had reser-
vations against initiating negotiations for a legally
binding instrument and instead proposed a partnership
approach, Norway and Switzerland, supported by

Iceland, called for a legally binding instrument on
mercury and other heavy metals of global concern,
arguing that a legally binding instrument would not
compete with or replace partnerships and voluntary
measures, but that it would ideally complement and
support such voluntary approaches by providing a
strong and committing framework.16 The EU similarly
supported a legally binding approach on mercury.17
Thus, the UNEP GC decided to further develop the
mercury programme, including through voluntary part-
nerships; concluded that further long-term interna-
tional action was required to reduce the risks from
mercury; asked the UNEP Executive Director to present
a progress report to the 24th UNEP GC; and decided to
then 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 binding
instrument on mercury and other heavy metals, Swit-
zerland organized a full-day side event on mercury and
other 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 on
mercury and other heavy metals, while the United
States and the Latin America and Caribbean Group pre-
ferred a non-legally binding approach.19 The IFCS
finally adopted its 2006 Budapest Statement on
Mercury, Lead and Cadmium, which recognized that
current efforts to minimize use and reduce releases of
mercury need to be expanded and invited UNEP to
assess the need for further action, including the option

of a legally binding instrument.20
One year later, at the 24th UNEP GC in 2007, the
support for a legally binding instrument had further
increased. Norway and Switzerland, together with
Gambia, Iceland and Senegal, tabled a proposal for a
global framework for international action on mercury,
lead and cadmium, calling for the extension of UNEP’s
mercury programme to lead and cadmium and for ini-
tiating negotiations for a legally binding instrument on
mercury that is ‘open [to] the possibility to include
other 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 that
partnerships are more effective than legally binding
mandates, and Canada, seeing no need for additional
work on lead and cadmium, introduced alternative
draft decisions, highlighting the need for further action
through 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
United
Nations 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

Governing
Council/Global Ministerial Environment Forum, 21–25 February
2005’, 16:47 Earth Negotiation Bulletin (2005), at 5.
18 UNEP GC, Decision 23/9, Chemicals Management (25
February
2005), 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’,
15:141
Earth Negotiation Bulletin (2006), at 5.
20 The Budapest Statement on Mercury, Lead and Cadmium, in:
Forum V, Fifth Session of the Intergovernmental Forum on
Chemicals
Safety (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 United
States made a statement for the record, indicating that the
meeting
did not allow for a full and considered discussion of the issues
and
that the Budapest Statement does not prejudge the outcome of
the
future 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
(UN
Doc. UNEP/GC/24/L.2, 15 January 2007), proposed draft
decision,
paragraphs 7 and 8, on file with the authors.

RECIEL 23 (2) 2014 THE MINAMATA CONVENTION
197
http://www.who.int/ifcs/documents/forums/forum5/final_report_
no_pl.pdf?ua=1
http://www.who.int/ifcs/documents/forums/forum5/final_report_
no_pl.pdf?ua=1
was supported by Australia, Colombia, China and
India.22 After intense negotiations, the UNEP GC,
noting the Budapest Statement, decided to further
strengthen its mercury programme. It concluded that
further long-term international action was required,
and agreed to establish an ad hoc open-ended working
group (OEWG) of governments, regional economic
integration organizations and stakeholder representa-
tives to review and assess options for enhanced volun-
tary measures and new or existing international legal
instruments.23
The establishment of the OEWG created new momen-
tum in favour of a mercury convention. Switzerland, in
close cooperation with Norway, initiated and led an
informal process to broaden the support for a legally
binding instrument and to narrow down the legally
binding options. In fact, until then, several options of
how to address mercury in a legally binding manner
were discussed, including listing methyl mercury in the
Stockholm Convention on Persistent Organic Pollut-
ants (POPs),24 a Stockholm Convention protocol on
mercury and a stand-alone convention.25 During this

process, it became clear that a legally binding approach
could best be realized through a new, freestanding
legally binding instrument on mercury. The primary
reason was the broad understanding that using existing
instruments such as the Stockholm Convention would
require an amendment. Additionally, some countries
perceived that a new convention could become a frame-
work for future regulation of other chemicals of global
concern, such as lead and cadmium.26 Despite the fact
that UNEP’s Executive Director Achim Steiner did not
believe in a legally binding instrument for mercury,27
the support for a legally binding approach further
increased throughout the work of the OEWG.28 The
United States, supported by Argentina, Canada, China,
India and Mexico, however, continued to promote a
voluntary approach, and proposed at the second
meeting of the OEWG a ‘Programmatic Organizational
Structure on Mercury’ (POSM) as an enhanced volun-
tary partnership programme.29 However, the United
States changed its opposition to a legally binding
instrument on mercury when the Obama administra-
tion entered the White House in January 2009,30 and
one month later, after long negotiations, the UNEP GC
finally decided at its 25th session to launch negotiations
for 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 open
for other substances of global concern was subject
to intensive negotiations. The African Group, EU,
Jamaica, Norway and Switzerland strongly argued for
allowing the new convention, while initially focusing on

mercury, to be able to address other substances at a
later stage, if the international community would con-
clude that such other substances should also be
addressed in a legally binding manner. Reasons for this
included the desire to prevent the unnecessary prolif-
eration of instruments32 and the desire to have a legally
binding framework ready for lead and cadmium, which
were considered by some States to be as problematic as
mercury. However, the United States, Canada, Austra-
lia, Japan and others were not ready for this flexibility.
Eventually, the mandate for a new convention was
limited to mercury, but it was agreed that the mandate
could be supplemented by future decisions of the UNEP
GC.33
THE NEGOTIATING PROCESS
The mandate for negotiating a global legally binding
instrument 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
February
2007), 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.
Andresen
et al., n. 11 above, at 430.
26 F. Perrez and G. Karlaganis, ‘Emerging Issues in Global

Chemicals
Policy’, 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 first
Glion Like-minded Meeting (May 2008), on file with the
authors.
27 See S. Andresen et al., n. 11 above, at 434, footnote 12. See
also
Statement 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 binding
instrument on mercury was explicitly supported by the African
Group,
the Group of Central and Eastern European Countries, the EU,
the
Dominican 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 of
Mercury, 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 the
United States had a strong interest in more effective
international
regulation, as only 17% of the mercury deposited in the United

States
came from American or Canadian sources); H. Selin, ‘Global
Envi-
ronmental Law and Treaty-making on Hazardous Substances:
The
Minamata Convention and Mercury Abatement’, 14:1 Global
Environ-
mental Politics (2013), 1, at 7.
31 UNEP GC, Decision 25/5, Chemicals Management, including
Mercury (20 February 2009), at paragraphs 26–31. See S.
Andresen
et 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
February
2009’, 16:78 Earth Negotiations Bulletin (2009), at 7.
198
http://www.chem.unep.ch/mercury/OEWG2/ED_OEWG-
2_%20statement.pdf
2_%20statement.pdf
2_%20statement.pdf
mental negotiating committee (INC) was to commence

its work in 2010 with the goal of completing it prior to
the 27th UNEP GC in early 2013, and to convene in the
second half of 2009 an ad hoc OEWG to prepare for the
work of the INC.34 Moreover, the INC was asked to
‘develop a comprehensive and suitable approach to
mercury’ that would include provisions on: reducing
the 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; knowledge
and information; arrangements for capacity-building,
technical and financial assistance; and compliance.35
The INC was also called upon to consider ‘flexibility in
that some provisions could allow countries discretion in
the implementation of their commitment’ in the devel-
opment of the new convention.36 To develop such a
comprehensive convention within less than four years
was 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 the
INC by organizing five session with 7–9 months
between each meeting proved to be a wise decision: it
allowed for sufficient time between sessions to digest
the outcomes of the meetings, to prepare relevant docu-
ments, interact informally between sessions, further
develop national positions and prepare for the next
meeting. The INC agreed – based on a proposal of the
Group of Latin American and Caribbean States
(GRULAC) – to discuss substantive and horizontal
issues concurrently to ensure a balance throughout the
negotiation process between commitments, support
and compliance.37

The negotiations progressed well. Throughout the
process, Switzerland organized informal consultations
between key actors. Still, each of the main thematic
areas of negotiations involved specific difficulties.
There was broad agreement that supply should be
reduced by limiting the sources of mercury and many
countries therefore favoured a total ban of mercury
mining. China, however, insisted that it needed to be
able to continue to mine mercury for a limited period of
time to provide raw materials for its production of vinyl
chloride monomer and other products, and that the
mining in question had legal rights to continue. The
discussions of trade in mercury involved the problem
that the United States could not accept a trade restric-
tion of imports of mercury from a non-party. With
regard to products, Switzerland and Norway, supported
by the African Group, proposed an approach to ban all
mercury-containing products and processes with the
exception of those listed in an annex, while the other
countries preferred to ban only listed products.38 Fur-
thermore, the phasing out of mercury in dental fillings
was contentious.
Emissions to the atmosphere was one of the most dis-
puted substantive areas. For some countries, strong
provisions on emissions were considered crucial given
that the first global mercury assessment showed that
atmospheric emissions were the largest source of global
mercury pollution. They argued for binding obligations
to use best available techniques and best environmental
practices. A few countries, however, argued that emis-
sions should be addressed only with voluntary mea-
sures. The particular sources of emissions that would be
addressed were also controversial. The discussions of
artisanal small-scale gold mining (ASGM) first required

agreement on the adoption of a voluntary or a manda-
tory approach;39 second, it required agreement on
whether the trade in mercury for ASGM should be
restricted (this agreement was only reached in the last
round of negotiations).40 The substantive negotiations
on the objective and definitions were also deferred to
the last round of negotiations as they depended on the
content of the measures and obligations to be devel-
oped.41 Interestingly, the issues that were resolved last
were not the substantive obligations on managing or
eliminating mercury risks, but questions on how to
refer to the principle of common but differentiated
responsibilities (CBDR), financing and support, and
compliance. These topics could only be agreed in a
package presented by the Chairman following all-night
meetings of a small group of ‘Friends of the Chair’.42
After the fourth round of negotiations, many central
issues still lacked consensus, including supply and
trade of mercury, emissions, products and processes,
the question of whether a specific provision on health
was needed, finance, compliance and CBDR.43 To foster
consensus, 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
(International
Institute 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 Legally
Binding Instrument on Mercury, 27 June–2 July 2012’, 28:15

Earth
Negotiation Bulletin (2012), at 5.
39 T. Kantai, J. Templeton and K. Xia, ‘Summary of the Third
Meeting
of the Intergovernmental Negotiating Committee to Prepare a
Global
Legally Binding Instrument on Mercury, 31 October–4
November
2011’, 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 Legally
Binding Instrument on Mercury, 13–19 January 2013’, 28:22
Earth
Negotiations Bulletin (2013), at 10.
41 M. Ashton, P. Kohler and K. Xia, ‘Summary of the Second
Meeting
of the Intergovernmental Negotiating Committee to Prepare a
Global
Legally Binding Instrument on Mercury, 24–28 January 2011’,
28:7
Earth Negotiations Bulletin (2011), at 4; P.M. Kohler et al., n.
40
above, 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.
199
http://www.iisd.ca/chemical/wginc1/brief/brief_mercury.pdf
http://www.iisd.ca/chemical/wginc1/brief/brief_mercury.pdf

mise text, Japan facilitated discussions on products and
processes, and Switzerland hosted an informal meeting
with key actors in Glion (near Geneva) two months
prior to INC 5, where possible solutions emerged for
most of the open issues. Nevertheless, as it was uncer-
tain whether INC 5 (which was held in Geneva on 13–18
January 2013) would be able to achieve agreement on
all open issues, Switzerland prepared for a resumed
INC 5 in Geneva in March 2013. To ensure that pres-
sure and commitment to finalize the negotiations
during INC 5 were maintained, only a few persons knew
about this option of a resumed INC. However, on Sat-
urday morning, 19 January, at 7 am, after a long week of
intensive negotiations, INC 5 agreed on the text of the
Minamata Convention on mercury, which was formally
adopted and opened for signature at the Diplomatic
Conference of Plenipotentiaries in Kumamoto, Japan,
on 10 October 2013.
THE MINAMATA CONVENTION AND
ITS KEY PROVISIONS
The Minamata Convention, negotiated in less than four
years, is a comprehensive treaty addressing mercury
throughout its life cycle. It benefited strongly from
factual and technical input, including from UNEP, the
World Health Organization and civil society. It is the
first new environmental treaty in over a decade, and
is broadly seen as a proof of the potential of
multilateralism. This section offers an overview of the
key provisions of this new treaty and provides a brief
analysis of the main factors behind the outcomes.
NAME OF THE CONVENTION
The Convention’s name refers to the Japanese town of

Minamata where methyl mercury releases from a
factory contaminated fish and led to the poisoning of
the local population.44 The offer by Japan to host the
diplomatic conference to sign the Convention in Kuma-
moto (near Minamata) and to organize a ceremony in
Minamata in remembrance of the Minamata victims
and the proposal to name the Convention the
‘Minamata Convention on Mercury’ was broadly sup-
ported by the countries concerned. The symbolic name
should not only remind us of the tragedy of the mercury
pollution that occurred in Minamata, but it should also
generally draw our attention to how the failure to adopt
and implement adequate environmental policies can
lead to inacceptable human suffering. However, it drew
mixed reaction from Minamata disease victims: while
some welcomed it, others criticized the name, arguing
that the Convention does not sufficiently reflect the
lessons from the Minamata tragedy. They argued that it
is especially deficient because it does not clarify the
responsibility of polluters and thus ‘dishonours the
victims of Minamata disease’.45 Nevertheless, as
Germany phrased it during the diplomatic conference,
it is generally felt that using the name ‘Minamata’
means that it will not only be associated with a
problem; it will also signify a solution.46
PREAMBLE AND PRINCIPLES
The preamble of the Minamata Convention factually
recognizes that mercury is a chemical of global concern
and it notes the health concerns from exposure to
mercury, the particular vulnerabilities of Arctic ecosys-
tems and indigenous communities, and the lessons of
the Minamata disease.47 Moreover, it makes explicit
and implicit references to several policy concepts and
principles commonly cited in international environ-

mental practice. It refers to the principles of the Rio
Declaration, including, inter alia, CBDR.48 It invokes
the principle of global or common concern by noting
that mercury is a chemical of global concern.49 It refers
to future generations by highlighting the health con-
cerns specifically of future generations.50 It reflects the
importance of financial, technical, technological and
capacity-building support,51 and stresses that parties
are allowed to take additional domestic measures for
the protection of human health and the environment
beyond those foreseen by the Convention.52 Finally, by
stating that trade and the environment are mutually
supportive, that the Minamata Convention does not
affect 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, at
22; 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
Convention
on Mercury and Its Preparatory Meeting, 7–11 October 2013’,
28:27
Earth 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
common
concern, see generally T. Cottier, The Emerging Principle of
Common
Concern (NCCR Trade Regulation, April 2012).
50 Minamata Convention, n. 47 above, at preambular paragraph
5. On
the 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
Preserve
the 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.
200
http://www.japantimes.co.jp/news/2013/10/10/national/minamat
a-convention-is-adopted/

http://www.japantimes.co.jp/news/2013/10/10/national/minamat
a-convention-is-adopted/
http://www.ipen.org/news/controversy-grows-over-proposed-
name-minamata-convention
http://www.ipen.org/news/controversy-grows-over-proposed-
name-minamata-convention
hierarchy between the Convention and other interna-
tional instruments, the preamble confirms the principle
of no hierarchy, mutual supportiveness and deference
between 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 of
the Rio Declaration.54 Precaution was referred to in the
UNEP GC decision of 2001 calling for a global mercury
assessment and in the UNEP GC decision of 2005 on
strengthening UNEP’s mercury programme.55 During
the negotiations, delegations did not pay much atten-
tion to the principle. During the final negotiations of the
preamble at INC 5, several delegations argued that if
CBDR was specifically mentioned in the Convention,
precaution should also be referred to, as well as several
other principles. However, no country was really
defending an explicit reference to precaution and del-
egations were satisfied with the general reaffirmation of
the Rio Declaration principles. One explanation for this
may be that as the risks and negative impacts of
mercury are well established and do not involve scien-
tific uncertainty, mercury does in fact not raise an issue
of precaution but rather an issue of prevention – and
prevention has to be seen as the concept underpinning
the entire convention.

Throughout the negotiations, the polluter pays prin-
ciple received support from several government delega-
tions and from nongovernmental organizations in the
context of the discussions of the preamble, mercury-
containing wastes and contaminated sites, storage
and finance.56 However, it remained unclear how
the polluter pays principle could and should be
operationalized and no concrete wording proposal was
submitted during the negotiations. Delegations were
similarly satisfied with the general reaffirmation of the
Rio Declaration.
DIFFERENTIATION, FLEXIBILITY
AND COMMON BUT
DIFFERENTIATED
RESPONSIBILITIES
The question of whether and how the Convention should
differentiate between countries was one of the most
contentious 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 while
differentiation according to responsibilities and capa-
bilities may in some cases be important, such differen-
tiation should be based on the specific circumstances of
countries and reflect today’s socio-economic realities
where developing countries are the largest source of
atmospheric emissions and where several developing
countries have a higher per capita gross domestic
product than some developed countries.58 A differentia-
tion according to two rigid, historical classes of countries
would therefore neither be equitable nor effective.59
The mandate for the negotiations acknowledged the

need to take into account, in addition to the other rel-
evant Rio principles, the principle of CBDR as set out in
the Principle 7 of the Rio Declaration. Specifically, it
called upon negotiators to consider ‘flexibility in that
some provisions could allow countries discretion in the
implementation of their commitment’.60 During the
negotiations, arguments were made to introduce differ-
entiation between developed and developing countries
in four areas: (i) specific obligations such as in the
context of emissions or trade – for instance by provid-
ing mandatory control measures only for developed
countries or by setting different timelines;61 (ii) compli-
ance;62 (iii) financing;63 and (iv) as a general principle in
the preamble setting the context for the substantive
provisions of the treaty.64
53 Ibid., at preambular paragraphs 10–12. On the principle of
no
hierarchy, 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,
Precaution
and Trade’, in: D. Wüger and T. Cottier (eds.), Genetic
Engineering
and 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, at
preambular paragraph 5.
56 M. Ashton, T. Kantai, J. Templeton and K. Xia, ‘Summary of
the
First Meeting of the Intergovernmental Negotiating Committee
to
Prepare a Global Legally Binding Instrument on Mercury, 7–11
June
2010’, 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
Report
of 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’,
found
at: <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 (developing
countries arguing that mandatory control measures failed to
reflect
socio-economic realities); M. Ashton et al., n. 41 above, at 8
(India,
referring to CBDR, cautioning against ambitious timelines and
calling
for 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.
41
above, at 3. Another proposed approach – opposed by Brazil and
China – was to require significant aggregate mercury emitters to
take
on additional responsibilities to control emissions. See S.
Aguilar
et al., n. 38 above, at 7–8.
201
http://www.ipen.org/pdfs/ipen-booklet-ht-treaty-en.pdf
http://data.worldbank.org/indicator/NY.GDP.PCAP.CD
Countries agreed that the Convention should not differ-
entiate between developed and developing countries in
the substantive provisions and obligations or with
regard to the compliance procedure. A general
statement was included in the finance article of the
Convention that ‘[t]he overall effectiveness of the
implementation of this Convention by developing
country 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 formulation
than the provision of the United Nations Framework

Convention on Climate Change (UNFCCC), which
states that:
The extent to which developing country parties will effec-
tively implement their commitments under the Convention
will depend on the effective implementation by developing
country parties of their commitments under the Convention
related to financial resources and transfer of technology.66
In fact, while the provision of the UNFCCC is construed
by some as conditioning implementation on support,
this argument cannot be made with regard to the
Minamata Convention. First, the overall effectiveness
of the implementation by developing countries is only
‘related to’ and not dependent of the effective imple-
mentation of the article on financing. Second, the
article 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 the
national implementation of the Convention.67
With regard to financing, in line with the general
approach taken by multilateral environmental agree-
ments, countries agreed to include specific articles on
financial, capacity, technical and technology support
for developing country parties and parties with econo-
mies in transition.68 Similarly, the Secretariat should
facilitate assistance, particularly to developing country
parties and parties with economies in transition.69 Yet
unlike the provisions of other agreements, not only
developed countries are obliged to provide such
support: all parties, within their capabilities, are invited
to contribute to the financial mechanism;70 all parties
are called to cooperate to provide, within their respec-
tive capabilities, capacity-building and technical assis-
tance to developing country parties;71 and developed

country 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 preamble
of the Convention became the focus of discussions on
differentiation in the last phases of the negotiations.
The draft negotiating text that was presented by the
Chair to the last negotiation round (INC5) included the
same preambular provision – ‘[r]ecognizing the impor-
tance of common but differentiated responsibilities in
addressing environmental and human-health problems
associated with the improper handling of mercury’ – as
presented in previous INCs.73 The issue of how Prin-
ciple 7 of the Rio Declaration could be reflected could
not be solved within the normal negotiations and had to
be addressed by a small Friends of the Chair group,
together with the issue of financing. While Brazil in
particular insisted on the necessity to refer to Principle
7, the United States and other countries argued that an
unchanged 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 the
principle by some within the climate change negotia-
tions to defend a non-dynamic ‘firewall’ between devel-
oped and developing countries, they were concerned
that Principle 7 could later be used as an argument that
the Convention does not have the same legal force for
developing countries as for developed countries and
that action by developing countries is conditional upon
prior action and support by developed countries.
Finally, on Saturday morning, the Chair was able to
present a compromise package according to which the
preamble recalled

the United Nations Conference on Sustainable Develop-
ment’s reaffirmation of the principles of the Rio Declaration
on Environment and Development, including, inter alia,
common but differentiated responsibilities, and acknowl-
edging States’ respective circumstances and capabilities and
the need for global action.74
Thus, while CBDR is not directly reaffirmed, its reaffir-
mation by the Rio+20 Conference is recalled, and
States’ respective circumstances and capabilities are
acknowledged. This acknowledgment of States’ respec-
tive capabilities is setting a clear framework for the
subsequent 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 the
view 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
(New
York, 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
on

Mercury (UN Doc. UNEP(DTIE)/Hg/INC.5/3, 11 October 2012),
found
at: <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;
see
P.M. Kohler et al., n. 40 above, at 4.
202
http://www.unep.org/chemicalsandwaste/Portals/9/Mercury/Doc
uments/INC5/5_3_e_text.pdf
uments/INC5/5_3_e_text.pdf
CBDR in the sense of dividing the world into developed
and developing countries, it does provide for targeted
differentiation and flexibility in specific substantive
provisions. The Convention promoted flexibility by
offering parties the possibility to ask for time-limited
exemptions for phase-out dates for products and pro-
cesses.75 With regard to emissions, parties may adopt
different measures in respect of different existing
source categories;76 and guidance on best available
techniques (BAT) and best environmental practices
(BEP) needs to take into account the difference between
new and existing sources.77 Moreover, only parties that
have 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 Public
information, awareness and education should take
place within a party’s capabilities, and parties need to
take into account their respective circumstances and
capabilities when cooperating on research, develop-
ment and monitoring.80
Finally, because the United States required specific
flexibility, it was agreed: (i) that the relevant defini-
tions of the Basel Convention on the Control of
Transboundary Movements of Hazardous Wastes and
Their Disposal81 apply only to the parties of the Basel
Convention;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 allowed
source;83 and (iii) that a party may, under certain con-
ditions, adopt different measures than not allowing
manufacture, import or export of phased-out mercury-
added products.84 It is difficult to find the right amount
of flexibility to accommodate the specific needs of a
country.85 On the one hand, broad participation – and
especially participation by key actors – requires flexibil-
ity; on the other hand, such flexibility should not under-
mine consistency, coherence and multilateralism. The
specific 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 undermine
the multilateral approach of the Convention. Indeed,
even though the United States was not able to sign the
Convention at the diplomatic conference due to the
shutdown of its government, it became the first country

to ratify the Minamata Convention – a clear signal that
it was worth it to accommodate the specific American
concerns.
OBJECTIVE AND DEFINITIONS
The objective of the Convention is to protect human
health and the environment from anthropogenic
emissions 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 mercury
releases, on the prevention of the risk or of adverse
effects on human health and the environment, and on
the recognition of the life cycle approach.87 The agree-
ment focusing on the protection of human health and
the environment from mercury takes a similar approach
as the Stockholm Convention;88 however, it does not
refer 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 second
difference is self-evident.
The Convention defines in Article 2 only those technical
terms used several times throughout the treaty, while
terms used only in one provision are defined in those
specific provisions. Thus, Article 3 on mercury supply
sources and trade includes specific definitions relevant
only for that article, and ‘manufacturing processes in
which mercury or mercury compounds are used’, ‘emis-
sions’, ‘releases’ and ‘mercury waste’ are defined in the
respective provisions of the Convention.89 Moreover, to
ensure consistency and coherence in the international
regulation of chemicals, the Minamata Convention
adopts a similar approach to the definition of technical
terms also used in other conventions. Thus, the defini-
tions of ‘best available techniques’ and ‘best environ-

mental practices’ generally follow the definitions of
those terms in the Stockholm Convention.90 However,
as a non-party to the Basel Convention, the United
States could not accept that the relevant definitions of
the Basel Convention would also apply to waste covered
under the Minamata Convention. It was therefore
agreed that the relevant Basel Convention definitions
75 Minamata Convention, n. 47 above, Article 6.
77 Ibid., Articles 8.8(a) and 9.7(a).
80 Ibid., Articles 18–19.
81 Basel Convention on the Control of Transboundary
Movements of
Hazardous Wastes and Their Disposal (Basel, 22 March 1989; in
force 5 May 1992).
83 Ibid., Article 3.8–3.10.
85 See, e.g., D. Bodansky, The Durban Platform Negotiations:
Goals
and Options (Harvard Project on Climate Agreement, 2012), at
8,
indicating that: ‘Often, who gets the most out of an agreement
depends on the relative power of the players: the countries that
are
most powerful are able to capture the biggest share of the
gains.’
87 See M. Ashton et al., n. 56 above, at 4; M. Ashton et al., n.
41
above, 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 and
11.
90 Ibid., Article 2(b) and 2(c); Stockholm Convention, n. 24
above,
Article 5(f).
203
apply only to parties to the Basel Convention, and other
countries would be required to use those definitions as
guidance.91 It is generally assumed that this will not
lead 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 similar
definitions and practices.
SUPPLY AND TRADE
The discussion on supply and trade focused on whether
some sources of mercury supply should be prohibited,
or ‘not allowed’ as it was termed in the Convention, and
on how trade should be limited or directed towards
allowed uses or waste disposal. It was agreed that no
new mercury mines could be started up, and that exist-
ing mines needed to close 15 years after entry into force
at the latest.92 The only mines in operation are in
Kyrgyzstan and China. As Kyrgyzstan already had
announced a conditional closure of its mines in 2009,93
the discussion essentially centred on how fast China

was willing and able to commit itself to closing its
mercury mining that was producing mercury for inter-
nal use in China’s industry. Excess mercury from the
chlor-alkali sector would be considered waste and be
taken out of circulation.94
Both of these provisions were the subject of hard nego-
tiations, as many countries found it essential to prevent
the supply of large amounts of mercury stimulating the
continued use of mercury in ASGM and in (allowed)
products. Many countries also considered that recycled
and reprocessed mercury from products and processes
would be sufficient to satisfy global demand in the long
run. However, restrictions on supply would limit the
provision of mercury for allowed uses under the Con-
vention. Some countries, notably Norway, Switzerland
and the EU, had argued for a hierarchy of the different
supply sources for mercury, with primary mercury from
mining being the least preferred source, and recycled
mercury being the most preferred source. They argued
for a gradual phase-out of all sources of supply, except
for recycled mercury which eventually would be the
only allowed source, but no agreement was reached on
this matter. Ultimately, it was seen as being in line with
the objective of the Convention to introduce special
restrictions on the supply of mercury from primary
mining and the chlor-alkali sector, and it is indeed an
important success of the Convention to limit any use of
mercury from primary mining to allowed uses under
the products and processes provisions, and excess
mercury from decommissioned chlor-alkali facilities to
be taken off the market altogether. Moreover, mercury
from primary mining cannot be used for ASGM.95
Finally, a system of written consent was established for

the trade in mercury: export of mercury to other parties
is only allowed after informed consent; export to non-
parties requires additional certification that offers an
equivalent level of control; and imports from non-
parties are only allowed upon certification that the
mercury is not from a source not allowed under the
Convention, 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 very
small quantities (so-called ‘trace quantities’) of mercury
found in non-mercury minerals and metals;97 this was
resolved by inserting a special provision that excluded
such trace quantities from the article.98
In the negotiations, the American position was that it
could not allow trade restriction on imports. This
created a fundamental problem, because if the United
States as a party would allow imports of mercury from
not allowed sources, such mercury could then be
re-exported to other parties. This would undermine the
basic concept to limit the supply of mercury by phasing
out certain sources. The United States proposed a solu-
tion that was very much targeted to its legal situation: a
party may not apply the trade restrictions on mercury
imports from non-parties, if it maintains comprehen-
sive restrictions on export of mercury and has domestic
measures in place to ensure that imported mercury is
managed in an environmentally sound manner. Fur-
thermore, the party has to notify and inform the Secre-
tariat about its export restrictions and domestic
measures and about the quantities and countries of
origins of mercury imported from non-parties. More-
over, the Implementation and Compliance Committee
has to review and evaluate such information.99 Never-

theless, for many countries, the trade restriction vis-à-
vis non-parties was fundamental and they were
concerned that this exemption could over time be
misused by other parties that do not have measures in
place 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 the
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,
‘Kyrgiz
Government Announces Conditional Closure World’s Last
Remaining
Exporting 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.
98 Minamata Convention, n. 47 above, Article 3.2 (b).
204
http://www.unitar.org/kyrgyz-government-announces-
conditional-closure-world-s-last-remaining-exporting-mercury-
mine

mine
mine
trade restriction to non-parties ceases to be available
after conclusion of the second meeting of the Confer-
ence of the Parties, and only a party that has provided
notification by then can continue to use the alternative
approach.100 With this addition, the American proposal
was accepted.
PRODUCTS
The Minamata Convention requires parties not to
allow the manufacture, import or export of mercury-
added products listed in part I of Annex A after the
phase-out date specified for those products, except
where an exclusion is specified in the Annex itself or
the party has a registered exemption pursuant to
Article 6.101 The phase-out date was set as 2020 for all
products in the Annex; these include most of the
major product groups such as batteries, light bulbs,
switches and relays, cosmetics, pesticides, biocides
and non-electronic measuring devices. However, the
United States could not accept the prohibition of the
manufacture, import or export of mercury-added
products listed in part I of Annex A of the Convention.
It argued that while they are effectively implementing
stringent policies to address mercury-containing prod-
ucts, it cannot adopt legislation at the national level
not allowing the import of such products.102 A compro-
mise could be found which was again tailored to the
specific legal situation in the United States: in prin-

ciple, no party can allow the manufacture, import or
export of listed mercury-added products, but a party
may, as an alternative, indicate that it will implement
different measures or strategies to address listed
mercury-containing products.103 Moreover, such a
party has to demonstrate that it has already reduced
to a de minimis level the manufacture, import and
export of the large majority of the listed products; it
has to report to the Conference of Parties a description
of the measures and strategies; implement measures
and strategies for listed products for which a de
minimis value has not yet been obtained; and the Con-
ference of the Parties will review the process and the
effectiveness of these measures.104
Much of the negotiations were centred on whether the
Convention should have a list of those products that
were banned (a ‘positive list’) or a general ban with
exemptions (a ‘negative list’) or some sort of compro-
mise between the two (a ‘hybrid’ approach). The African
Group, Norway and Switzerland were the most vocal in
advocating the negative list approach, arguing that it
would be simple to understand and cover all uses,
including future ones. Many countries, including the
United States, Canada and several countries in the Asia-
Pacific Group, were strongly in favour of the positive list
approach, arguing that it would be more practical and
easy for countries to implement, that it would be more
cost-effective and that a positive list approach would
cover most uses of mercury. The GRULAC countries
were in favour of the hybrid approach. Japan, Jamaica
and Russia proposed a way forward on combining the
proposals,105 but ultimately a positive list approach was
agreed upon at INC 4. However, there was substantial
disagreement on the regulation of dental amalgam,

with some countries seeking a future prohibition and
others arguing that dental amalgam was still necessary.
A compromise solution was found with a separate
Annex with a phase-down approach, which suggests a
reduction in the use by requiring parties to take at least
two of the listed measures.106 The annexes are open to
amendment and review. This means that, in the long
run, all uses may still be phased out.107
PROCESSES
The Convention requires parties to not allow the use of
mercury in the processes specified in Annex B by spe-
cific dates – namely 2018 for the acetaldehyde process
and 2025 for the chlor-alkali process.108 For three other
processes, including vinyl chloride monomer (VCM)
production, it establishes provisions to reduce the use
of mercury.109 The restrictions on VCM production were
particularly hard to reach agreement on since the use of
mercury in this production is only used in China, and
the 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 that
mercury-free catalysts based on existing processes
have become technically and economically feasible.110
Another hard part in the negotiations was setting the
phase-out date for the use of mercury in the chlor-alkali
production. Since it is a process that is already being
phased out internationally, most countries considered
that 2025 was unnecessary late. However, Russia
insisted on this late phase-out date and it was finally
agreed upon at INC 5.
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

prohibiting
the manufacture, import or export of a chemical substance like
mercury in a product, it has to be shown that the environmental
harm
from the existing use of the chemical outweighs the cost of such
regulation. Because of the many steps already taken to reduce
mercury use in the United States, the American delegation was
concerned that it would have been impossible to make the
necessary
findings.
104 Ibid.
105 See S. Aguilar et al., n. 38 above, at 5.
107 Ibid., Articles 5.7–5.9.
110 Ibid., Annex B.
205
EXEMPTIONS
For products and processes, there is the possibility to
have a time-limited exemption for the obligations set
out in the Annexes for specific products or processes.
An exemption can be given for five years and can be
renewed once.111 The arrangement follows the model of
the Stockholm Convention, but it is much clearer in
restricting renewals and specifying that no party may

have an exemption in effect at any time after ten years
after the phase-out date for a product or process listed
in Annex A or B.112 The provisions were important in
securing agreement on phase-out dates in that coun-
tries knew that they could apply for an exemption if
necessary.
ARTISANAL AND SMALL-SCALE
GOLD MINING
During the negotiations, it became clear that ASGM is
the largest source of global atmospheric mercury emis-
sions, and there was broad agreement that the new
mercury convention should address it. However, while
some countries favoured a ban on ASGM, others argued
that this sector needs a more subtle approach, including
the formalization of the often informal ASGM sector.113
Countries agreed to combine mandatory and voluntary
approaches, with the Convention requiring parties
where ASGM is more than insignificant to develop and
implement national action plans in line with the obli-
gations laid out in Annex C.114 These obligations give a
clear push to formalize such activities and phase out the
worst practices. Although being a very large and socially
very complex source of mercury emissions, and action
in the area having clear trade and development impli-
cations, agreement on the issue was reached at an early
stage, at INC 3.115 However, this was only after the issue
of banning trade in mercury for the purposes of ASGM
was shifted to the discussions on trade. In those discus-
sions, it was decided not to include an overall ban on
trade, but export of mercury from primary mining and
chlor-alkali facilities is not allowed for ASGM.116
EMISSIONS
Emissions of mercury to air was a crucial issue in the

negotiations.117 This was due to air emissions being a
very large source of total mercury emissions, and the
requirements to reduce air emissions would greatly
affect the Convention’s ability to protect human health
and the environment. At the same time, this was also an
area where some countries pushed for greater flexibility
as the costs to parties could be high. In particular,
developing countries such as China and India were con-
cerned that restrictions on mercury emissions from
coal-fired power plants could inhibit their economic
development. India continued to argue for a voluntary
approach well into the negotiations, based on the need
to increase coal-based thermal power.118 The mandate
of the negotiations contained both of these aspects: it
mandated countries to reduce the atmospheric emis-
sions of mercury, while maintaining flexibility in that
some provisions could allow countries discretion in the
implementation of their commitments.119 The provision
on emissions was therefore one of the most contentious
issues in the negotiations, with the focus being on the
level of prescription/flexibility. This also gave rise to a
hard debate on whether emissions were to be reduced,
eliminated or merely controlled. China and India were
the most vocal in seeking emissions to be only con-
trolled, whereas most other countries advocated stron-
ger language. India and China proposed a ‘menu-order
approach’ that would allow countries to fulfil obliga-
tions by measures that they would themselves deter-
mine in a national implementation plan.120 Others
sought clear provisions that BAT/BEP would apply.
In the end, countries agreed that Article 8 would
require that emissions of mercury to air be controlled,
and be reduced where feasible.121 Source categories are
listed 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 and
best environmental practices,122 while for existing
sources, parties can choose between five different
approaches.123 The compromise was thus one that
reflected a flexible approach with regard to existing
sources, while the approach of clear binding obligations
is reflected for new sources. The obligation to apply
BAT/BEP for new sources is very important since, in
the long run, all sources will eventually be new sources
as existing sources will be closed down over time.
111 Ibid., Articles 6.1 and 6.6.
113 See T. Kantai et al., n. 39 above, at 6 (reflecting the
discussion of
voluntary versus mandatory approaches, with Switzerland
proposing
a 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
and
Suitable Approach to a Legally Binding Instrument on Mercury,
found
at: <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) and

28 (a).
120 See M. Ashton et al., n. 56 above, at 8–9.
206
uments/INC2/India%20submission.pdf
uments/INC2/India%20submission.pdf
RELEASES
The release of mercury to water was not explicitly rec-
ognized as an issue in the negotiations, and there was
much discussion on whether there was a need for a
separate provision for it. Some countries, including the
United States and Canada, argued that the major
sources of releases would be covered in provisions on
products and processes, storage and waste, and
ASGM.124 However, especially for the Latin American
group of countries it was highly important to address
releases into water in a separate provision. Countries
eventually agreed that a specific provision should
address releases to water from sources not covered by
other provisions.125 Like emissions to air, releases of
mercury to water are to be controlled, and reduced
where 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 Releases
are to be reduced using one or several different mea-
sures, including BAT/BEP.128 This mirrors the
approach taken with respect to existing sources for
atmospheric emissions.
STORAGE, WASTE AND
CONTAMINATED SITES
The Convention establishes obligations for parties for
the sound management of mercury waste, for storage
and for contaminated sites.129 Interim storage of
mercury and mercury compounds has to be under-
taken in an environmentally sound manner, based on
guidelines to be developed taking into account rel-
evant guidelines under the Basel Convention.130
Mercury can only be recycled for allowed uses under
the Convention, and transport needs to be in line with
provisions of the Basel Convention. Furthermore,
parties are encouraged to develop strategies to identify
and assess sites contaminated by mercury or mercury
compounds.131 The waste and storage provision was
relatively uncontroversial and was not linked to any
other provisions. However, Chile’s concern that
mercury from byproducts of mining might be directly
covered by the waste definition needed to be resolved
by mentioning specifically that such byproducts are
excluded.132
FINANCE
The Convention states that each party, within its capa-
bilities, undertakes to provide resources for national
activities that are intended to implement this Conven-
tion.133 These resources may include domestic funding
through relevant policies, development strategies and
national budgets, bilateral and multilateral funding,

and private sector involvement.134 This is a surprisingly
modern approach to financing as it underlines that as a
starting point, it is the responsibility of each party
to provide resources for the implementation of the
Convention.
Furthermore, a mechanism for external financial
resources was established that includes the Global
Environment Facility (GEF) and a specific programme
to support capacity-building and technical assistance in
developing country parties and parties with economies
in transition.135 Parties also need to cooperate to
provide capacity-building and technical assistance to
developing country parties and parties with economies
in transition.136 This includes the development, transfer
and diffusion of, and access to, up-to-date environmen-
tally sound alternative technologies for developing
countries.
The negotiations on finance were difficult as there were
opposing 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 as
more responsive to the parties; it was deemed to be
efficient; it had a proven track record in financing work
under the Montreal Protocol; and it could better
support institutional strengthening in developing coun-
tries through supporting specific organizational units in
the national administrations dedicated to fulfilling obli-
gations under the Protocol. The industrialized countries
sought to include such a mechanism under the GEF,
arguing that the GEF was the instrument that would
best serve the purpose, it had proven experience as the
financial mechanism for the Stockholm Convention and

it would be able to link efforts on mercury with efforts
in other environmental treaties. Moreover, proponents
of the GEF as the financial mechanism argued that the
creation of new financial mechanisms when there
already are existing ones should be avoided. The idea of
supporting organizational units in national administra-
tions was also seen as problematic by several donor
129 Ibid., Articles 10, 11 and 12
130 Ibid., Articles 10.2 and 10.3.
134 Ibid.
137 See also H. Selin, n. 30 above, at 14–15.
207
countries, while others (e.g., Switzerland) supported
the idea. In the last stage, the discussions in the contact
group on financial resources focused on compromises
where having the GEF as part of the financial mecha-

nism was combined with an additional ‘specific inter-
national Programme to support capacity-building and
technical assistance’.138 Thus, units were not referred to
explicitly in the final text, but ‘capacity-building and
technical assistance’ was generally seen as possibly
including the concept of units. This solution was in the
end linked to other issues under the Convention, such
as the preamble and the provisions on compliance.139
COMPLIANCE
The mandate for negotiating the mercury convention
specified that it should include provisions addressing
compliance,140 which is a very contentious issue. In fact,
efforts to date to agree on a compliance mechanism
within the Rotterdam and Stockholm Conventions have
not succeeded, despite their very clear mandate that a
compliance 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 was
important to reach agreement on all main elements of a
compliance mechanism, that the provisions on compli-
ance and financing should be developed and adopted in
parallel, and that the compliance committee should be
established directly in the Convention text. China and
Chile, however, supported by others, favoured a similar
approach to the one taken by the other chemicals con-
ventions, which merely include an enabling clause
instructing the Conference of the Parties to develop and
adopt a compliance mechanism after its entry into
force. India even favoured a voluntary compliance
mechanism – a concept that seems to be contrary to the
idea of the requirement to comply with legally binding
obligations of international conventions.141 While the
proponents of a compliance mechanism signalled that
they would not be ready to move faster on finance than

on compliance, those favouring a weak outcome on
compliance argued that a compliance mechanism could
only be established once financial support was ensured.
During the negotiations, China, India, Brazil and Cuba
argued against having only a compliance or implemen-
tation committee, but proposed instead one or more
committees on financial assistance, technical support,
capacity-building and implementation.142 This effort to
dilute the focus on compliance and implementation did
not receive sufficient support, however. At the end of
INC 4, there was broad agreement that the compliance
and implementation mechanism should be supportive,
facilitative, non-punitive and non-confrontational, but
no agreement was achieved on whether the mechanism
should be established directly by the Convention or by
the first Conference of the Parties, and views diverged
with regard to the trigger of a compliance mechanism,
composition of a compliance committee and decision
making. Moreover, during INC 5, China argued that the
implementation difficulties of a developing country
party should not be regarded as non-compliance if they
are due to failure to have full access to adequate finan-
cial support in a timely manner. Developed countries,
however, stressed that compliance should not be
differentiated between developed and developing
countries.143
Agreement was reached only on the last day of the
negotiations as part of a final compromise package. It
was agreed that the Convention establishes the imple-
mentation and compliance mechanism, including a
committee, to review compliance with all provisions
of the Convention.144 This mechanism shall be facilita-
tive in nature and pay particular attention to the

respective national capabilities and circumstances of
parties.145 The committee, consisting of 15 members,
shall examine both individual and systemic issues of
implementation and compliance and make recommen-
dations to the Conference of the Parties.146 The com-
mittee may consider issues based on submissions of
parties, on national reports and at the request from
the Conference of the Parties.147 As the national
reports have to be submitted through the Secretariat
to the Conference of the Parties, the competence to
consider issues based on national reports is de facto a
Secretariat trigger. Finally, the committee can take
decisions by a three-quarters majority if no consensus
can be reached.148
In light of the impasse within the Rotterdam and Stock-
holm Conventions with regard to the establishment of a
compliance or implementation committee, the agree-
ment achieved for the Minamata Convention can be
seen as groundbreaking and very progressive. Many
have hoped after INC 5 that this positive outcome of the
mercury negotiations would stimulate the Stockholm
and Rotterdam Conventions to reach a similar agree-
ment on compliance at their subsequent meeting of the
Conference of the Parties. However, this hope proved to138
Minamata Convention, n. 47 above, Articles 13.6(b) and 13.9.
140 See Decision 25/5, n. 31 above, at paragraph 27(i). On the
history
of the compliance mechanism of the Convention, see also J.
Templeton and P. Kohler, ‘Implementation and Compliance
under the
Minamata 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.
145 Ibid.
146 Ibid., Articles 15.2–15.3.
147 Ibid., Article 15.4
208
be too optimistic and as of today, the two conventions
have still not been able to establish their compliance
mechanisms.
HEALTH
Article 16 on health encourages parties to develop and
implement strategies and programmes to identify and
protect vulnerable populations. Although the provi-
sions are not detailed, the health provision played a
significant role in the negotiations. The Latin American
countries in particular were very clear that health
provisions needed to be included in the Convention,
and having a separate provision was important for
reaching a final agreement. It was also important to
find a solution that did not have financial implications.

The general wording of Article 16 fully reflects these
concerns.
STANDARD PROVISIONS
Most standard provisions did not raise difficulties
during the negotiations. The Convention stipulates that
parties should: facilitate the exchange of information
concerning mercury;149 promote and facilitate public
information, education and awareness related to the
effects of mercury and on alternatives;150 and cooperate
to develop and improve, among others, inventories,
modelling, impact assessments, information on alter-
natives and on BAT/BEP.151 Another provision deals
with the optional development of implementation
plans.152 In terms of reporting and review, each party
has to report on the implementation of the Conven-
tion,153 and the Conference of the Parties is to evaluate
the effectiveness of the Convention no later than six
years after it enters into force and periodically thereaf-
ter.154 Finally, there is a range of standard provisions
on: establishing the treaty bodies (Conference of the
Parties and Secretariat); dispute settlement; amend-
ments to the Convention and its annexes; the right to
vote; signature; ratification; acceptance; approval or
accession; entry into force; reservations (which are not
allowed); withdrawal; the depositary; and authentic
texts.155
CONCLUSIONS
The international community identified mercury as a
global risk that warranted international action. The sci-
entific basis was clear, and it was clear that the issue
was of global importance. While it took some time to
agree 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 a
milestone for chemical safety and the environment, as a
groundbreaking treaty addressing a substance through-
out its life cycle, and as proof that multilateralism can
work.156
The reason for its success lies in there being a clear
global risk, and no country argued against the need for
global action to address it. In the beginning, there was a
dedicated group of countries pushing for a legally
binding instrument, ensuring that the option was not
off the table even if immediate agreement was not
achieved. Norway and Switzerland were the leading
countries in proposing a new legally binding instru-
ment in 2003, but many other countries soon joined the
call. The notable change in position by the United
States was the decisive turning point. For developing
countries, realizing that they would have to deal with
mercury nationally, there was interest to cooperate
internationally to support this work. For developed
countries, international cooperation to address the
rising emissions and releases in developing countries
was seen as vital. All in all, there were clear incentives to
promote success.
At a practical level, the process was very well organized
and well prepared by UNEP Chemicals. It benefited
from regular informal consultations between key actors
and from the substantive input from competent insti-
tutions such as the World Health Organization and the
United Nations Industrial Development Organization,
as well as nongovernmental organizations such as the
Zero Mercury Working Group and the International
POPs Elimination Network. The calm, solution-
oriented and clear guidance by the Chair and the wise

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