Land-based marine pollution and the Arctic - polarities between principles and practice

Following an introductorysummary of the sources of land-based marine pollution in and into the Arctic,further sections review global efforts to address land-based pollution in terms ofthe

Arctic: polarities between principles and practice

 *

The concept of sustainable development calls for the application ofmanyprinciples – including public participation, polluter pays, intergenerationalequity, community-based management, indigenous rights and environmentalimpact assessment.1Fundamental in combating land-based pollution is the pre- cautionary principle, also known as the precautionary‘approach’.2It urges a shiftawayfrom the traditional belief in the assimilative capacityof the oceans to absorbwastes and faith in end-of-pipe standards to achieve acceptable environmentalqualitystandards The precautionaryprinciple is torn between competingphilosophies towards nature and natural resources In its strictest form, it calls forquite extreme law and policyreforms that emphasise pollution prevention and theneed to develop clean technologies and products

Extreme control measures may include the establishment of zero charge (or virtual elimination) standards for synthetic chemicals, a ‘reverse listing’approach to chemicals management where only ‘safe’ chemicals are listed for use,and a shift in the burden of proof to those proposing development activities toshow some standard of safety.3Best available technology without regard to costs is

dis-a further direct medis-asure often dis-advocdis-ated.4

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* The author wishes to acknowledge the research assistance of Justin Mellor, third-year law student

at Dalhousie Law School, and research funding from the Social Sciences and Humanities Research Council of Canada.

1See J M Van Dyke, ‘The Rio Principles, and Our Responsibilities of Ocean Stewardship’, Ocean and

Coastal Management, Vol 31, 1996, pp 1–23; and P Sands, ‘International Law in the Field of

Sustainable Development: Emerging Legal Principles’, in W Lang (ed.), Sustainable Development

and International Law (London and Dordrecht: Graham & Trotman and Martinus Nijhoff, 1995),

pp 53–72.

2 For reviews, see D Freestone and E Hey, ‘Origins and Development of the Precautionary Principle’,

in D Freestone and H Hey (eds.), The Precautionary Principle and International Law: The

Challenge of Implementation (The Hague: Kluwer Law International, 1996), pp 3–12; and E Hey,

‘The Precautionary Principle’, Marine Pollution Bulletin, Vol 26, 1993, p 53.

3 J Moffett, ‘Legislative Options for Implementing the Precautionary Principle’, Journal of

Environmental Law and Practice, Vol 7, 1997, pp 157, 166–7; A Deville and R Harding, Applying the Precautionary Principle (Sydney: Federation Press, 1997), p 71; and T Lundmark, ‘Systemizing

Environmental Law on a German Model’, Dickinson Journal of Environmental Law & Policy, Vol 7,

1998, pp 1, 17.

4 O McIntyre and T Mosedale, ‘The Precautionary Principle as a Norm of Customary International

Law’, Journal of Environmental Law, Vol 9, 1997, pp 221, 237.

A more utilitarian view of precaution, as articulated in Principle 15 of theRio Declaration on Environment and Development,5 supports an array of lessextreme management measures Reliance on cost–benefit and risk–benefit assess-ments is viewed as critical in reaching rational decisions Flexible trade-offsbetween environmental and economic values are encouraged through application

of best available techniques (with consideration given to costs).6

The principles of pollution prevention and precaution are closely related,

as pollution prevention measures are one of the best ways of being ‘precautionary’.There is also a distinction, however, since the precautionary principle or approachapplies where there is scientific uncertainty regarding the cause–effect links of anactivity.7

The twin principles of precaution and pollution prevention raise variousquestions which will be explored in this chapter These include:

1 How far are the abstract principles heralded by politicians and crats being translated into concrete action in the Arctic?

bureau-2 To what extent do ethical, economic, scientific and cultural perspectivesinfluence interpretations?

3 How effectively are concerns over toxic contamination of traditionalfoods of Arctic inhabitants and calls for preventing transboundary pollu-tion being articulated and heeded at the regional and global levels?

Practical questions have also arisen over the adequacy of financial and humanresource commitments to environmental protection, and the effectiveness of com-pliance and enforcement

This chapter examines the tensions between the principles of precautionand pollution prevention, on the one hand, and actual practices relating to land-based pollution control in the Arctic, on the other Following an introductorysummary of the sources of land-based marine pollution in and into the Arctic,further sections review global efforts to address land-based pollution in terms ofthe precautionary principle or approach, as well as examining extra-regional

efforts to address land-based sources of pollution The focus is then shifted to

‘regional seas’ agreements tangential to Arctic land-based pollution control,specifically the two 1992 conventions for the protection of the marine environment

of the northeast Atlantic8 and the Baltic Sea area, respectively.9 Finally, efforts

5 UN doc A/CONF.151/26, Vol 1, text reprinted in ILM, Vol 31, 1992, pp 874ff.

6F B Cross, ‘Paradoxical Perils of the Precautionary Principle’, Washington & Lee Law Review, Vol.

53, 1996, p 851.

7 See J Cameron and W Wade-Gery, ‘Addressing Uncertainty: Law, Policy and the Development of

the Precautionary Principle’, CSERGE Working Paper GEC 92-43 (London: Centre for Social and

Economic Research on the Global Environment, 1992), pp 6–8.

8 Reprinted in ILM, Vol 32, 1993, pp 1,069 ff.

9Reprinted in K R Simmonds (ed.), New Directions in the Law of the Sea (New Series), Vol 3, J 47,

undertaken at the Arctic regional level to address land-based sources of marinepollution are reviewed.10

   

Although the Arctic Ocean has been described as less polluted than othermarine regions,11the Arctic seas are coming under increasing stress from varioussources: from land-based activities in the Arctic, particularly in the RussianFederation; from long-range movements of hazardous substances from areasoutside the Arctic; and from global emissions of greenhouse gases and ozone-depleting substances

Land-based activities in the Arctic

From one perspective, land-based marine pollution in the Arctic wouldnot appear a major regional problem Since population levels are relatively low,with small communities dotting the coastline, quantities of human sewage are low

as well, and tend to have only local effects For example, the population ofGreenland is about 57,000, out of which about 80 per cent live in villages In theCanadian Far North, approximately fifty settlements fringe the coast, with theaverage community population being 742.12

However, major local sources of marine and coastal pollution do exist –among them urban settlements, mining wastes, oil and gas operations, nuclearactivities, industrial complexes (particularlysmelters), and pulp and paper mills.Sewage from urban settlements is a special concern in the Russian Federation,where some two million people live in its Arctic part.13The most serious discharges

of untreated sewage and wastes come from Murmansk, Arkhangelsk, Severodvinsk,Naryan-Mar, Anderma, Igarka, Dudinka, Tiksi and Pevek.14The annual discharge ofmining wastes into watercourses in the Murmansk region of the RussianFederation is reported to be over two billion m3.15In addition to sources in theRussian Arctic, mining wastes also enter the Arctic marine environment from two

10 A discussion of global agreements addressing land-based nuclear pollution is beyond the scope

of this chapter On dumping of radioactive wastes in parts of the Arctic Ocean, see Stokke, Chapter

9 in this book.

11 Arctic Pollution Issues: A State of the Arctic Environment Report (Oslo: Arctic Monitoring and

Assessment Programme, 1997).

12 Working Group on the Protection of the Arctic Marine Environment, Report to the Third

Ministerial Conference on the Protection of the Arctic Environment, 20–21 March 1996, Inuvik, Canada (Oslo: Norwegian Ministry of the Environment, 1996), p 31 (hereinafter PAME 1996

15

lead-zinc mines in Canada that discharge tailing effluents – the Polaris mine onLittle Cornwallis Island and the Nanisivik mine on the north coast of Baffin Island– and three former mines in Greenland known to be sources of heavymetals enter-ing the sea.

Considerable amounts of hydrocarbons enter Arctic waters by means ofrivers and the atmosphere Atmospheric transport is estimated to add about 40,000tons of hydrocarbons to the Arctic marine environment annually Input of petro-leum hydrocarbons into the European Arctic is thought to stem mainly from rivertransport, with Russian measurements indicating a concentration of petroleumhydrocarbons four to twenty times higher in the Ob Gulf than in the Rhine or Elberivers.16A major land-based oil pollution concern remains the Russian Federation’sextensive pipeline network, which is often in poor condition and experiences fre-quent leaks Six trunk oil pipelines stretch over 10,000 km of western Siberia; thenetwork is capable of carrying 400 million tons of oil per year Estimates of lossesfrom oil pipelines for western Siberia and Timan-Pechora, the two main petroleumprovinces of Russia, are 1–1.2 per cent The notorious 1994 oil pipeline leaks north

of the town of Urinsk in the Komi Republic spilled over 100,000 tons across a 60 km2area, with some oil entering the Usa and Pechora rivers.17

In addition to the contamination hazards associated with some 130decommissioned former Soviet nuclear submarines, most of which remain afloat

in coastal areas and have spent nuclear fuel aboard, two nuclear power plantsoperate in the Russian north The Kola nuclear power plant, estimated to produceover 1,000 m3of radioactive solid and liquid wastes per year, has four nuclear reac-tors The Bilibino nuclear power plant in the Chuckchi autonomous district alsohas four blocks; more than 3,600 spent nuclear assemblies are stored at the site.18

The largest point-source contributors of land-based marine pollution

in the Arctic appear to be major mining-metallurgical complexes Hot spots ofheavy metal emissions include the Pechenganikel industrial complex and theSeveronickel smelter complex on the Kola Peninsula of the Russian Federation.Severonickel, the largest nickel-copper smelter in the world, emits an estimated3,000 tons of copper and 2,700 tons of nickel annually to the atmosphere TheNorilsk mining and metallurgical combine is also a major polluter, responsibleeach year for up to 1,300 tons of nickel emissions, 3,000 tons of copper, 44 tons oflead and almost 31,000 tons of sulphuric acid emissions.19Human health effectsfrom pollution may be severe, with overall child mortality in the Kola Peninsulaexceeding the Russian average by 39 per cent.20Also outside Russia there are prob-lems In northeastern Sweden, airborne emissions from the primary smelter at

16A State of the Arctic Environment Report, p 151; and J R Hansen, R Hansson and S Norris (eds.),

‘The State of the European Arctic Environment’, EEA Environmental Monograph No 3

(Copenhagen: European Environment Agency, 1996), p 97 (hereinafter State of the European Arctic Report) 17 A State of the Arctic Environment Report, p 150; and ACOPS Report, pp 31–3.

18 ACOPS Report, pp 38–42.

19A State of the Arctic Environment Report, p 98; and ACOPS Report, pp 9–10.

20

Rönnskär carry arsenic, copper, lead, mercury, zinc as well as sulphur and nitrogencompounds to the Arctic region.21

Finally, pulp and paper mills are also among major land-based sources ofmarine pollution on the Arctic The volume of waste discharged from the RussianFederation’s Arkhangelsk pulp mill between 1985 and 1990 ranged between 309and 345 million m3 per year, while the Solombalsky pulp mill contributed anannual 82–90 million m3 Both mills dispose of wastes into the North Dvina river,whose estuarine area has been found to have dioxin levels exceeding industrialareas of central Europe.22

Long-range transport of hazardous substances from land-based sources outside the Arctic

Three main categories of hazardous pollutants are transported from

outside the region Radionuclides are carried by ocean currents into the Arctic from

three nuclear reprocessing plants in western Europe: Sellafield on the northwestcoast of England, La Hague near Cherbourg in France and Dounreay in northeastScotland.23Heavy metals, including mercury, lead, nickel, cadmium and copper,

are mainly transported from sources in Eurasia and North America.24Persistent organic pollutants (POPs), typically semi-volatile and enabling long-distance

movements, include many persistent pesticides such as dieldrin, DDT, toxaphene,chlordane and hexachlorocyclohexane; also several industrial compounds, amongthem the polychlorinated biphenyls (PCBs); and various combustion by-productssuch as polycyclic aromatic hydrocarbons (PAHs) as well as dioxins and furans.25

Substantial amounts of POPs may be reaching the Arctic, transported onair masses from Europe, Russia, North America and Asia, and are a special concern.Concentrating in the fatty tissues of wildlife, POPs raise health risks to indigenouscommunities that rely on traditional diets high in lipid content For example,concentrations of organochlorines in mothers’ milk of the Inuit from Nunavik innorthern Quebec are two to ten times higher than levels in southern non-aborigi-nal populations While a whole range of socio-cultural, nutritional and spiritualbenefits accompany traditional foods, various threats are posed by toxic contami-nants, including neurological effects, reproductive problems, immune suppres-sion and cancer

Global climate change and ozone depletion threats

Global warming, fuelled by greenhouse gas emissions, may have ularly severe impacts on the Arctic Temperatures in the Arctic are predicted to riseapproximately twice the global average, and melting ice contributing to sea-level

partic-21 PAME 1996 Report, p 36 22 ACOPS Report, pp 36–7.

23 A State of the Arctic Environment Report, p 114; and PAME 1996 Report, pp 61–3.

rise may increase coastal erosion and inundate low-lying areas.26Thawing of thepermafrost could damage vegetation, while changes in sea ice could shift themigration routes of marine mammals and reduce feeding areas for polar bears.27Higher temperatures and lower salinity (from increased snow melting) couldalso affect global ocean circulation, including the warm North Atlantic current,and might result in colder climates, especially in Scandinavia and northwestRussia.28

The thinning of the ozone layer over the Arctic is also a growing concern,with its environmental impacts still uncertain A general trend of ozone depletiongreater than 8 per cent per decade has been reported for the Arctic Numerousozone holes, likened to Swiss cheese, occur over the Arctic in late winter and earlyspring At such times, depletion maybe severe indeed – up to 40 per cent Snow,with its highlyreflective surface, can double ultraviolet radiation exposure Polarplants and plankton that have become adapted to low light and radiation condi-tions might be more susceptible to damage than organisms from other regions.Zooplankton andfish eggs and larvae might also be threatened Human healthrisks include increases in skin cancer, cataracts and immune system suppression.29

   - 



Since no global convention exists on land-based pollution control, agement efforts here have been fragmented The three main initiatives to date haveshunned a strict precautionary approach to pollution control: the 1998 Convention

man-on the Prior Informed Cman-onsent Procedure for Certain Hazardous Chemicals andPesticides in International Trade,30the proposed global convention on POPs, andthe Global Programme of Action for the Protection of the Marine Environmentfrom Land-Based Activities (GPA).31The provisions of the 1982 Law of the SeaConvention relating to land-based pollution will not be discussed here, as they areanalysed elsewhere in this book.32

The 1998 Convention on Prior Informed Consent

This Convention promises to address – partially and indirectly – theproblem of long-range chemical transport The Convention will make mandatorythe previously voluntary ‘prior informed consent’ procedures for banned andseverely restricted chemicals promoted by the FAO Code of Conduct on the

26State of the European Arctic Report, p 32; and A State of the Arctic Environment Report, p 162.

27 P Prestrud and I Stirling, ‘The International Polar Bear Agreement and the Current Status of the

Polar Bear Conservation’, Aquatic Mammals, Vol 20, 1994, pp 119–20.

28A State of the Arctic Environment Report, p 161. 29Ibid., pp 165–8, 180.

30 Text reprinted in ILM, Vol 38, 1999, pp 1ff. 31 UNEP (OCA)/LBA/IG.2/7, of 5 December 1995 32

Distribution and Use of Pesticides, and by the London Guidelines for the Exchange

of Information on Chemicals in International Trade.33

The Convention requires each party to inform other parties of nationalbans or severe restrictions on chemicals; it further makes chemicals listed under itsAnnex III subject to the ‘prior informed consent’ procedure whereby the importingstate can withhold consent The Convention initially covers twenty-two pesticidesand five industrial chemicals, of which many are POPs

However, the Convention does not adopt a precautionary approach ItsPreamble, while recalling pertinent provisions of the Rio Declaration in a generalway, does not explicitly call for a precautionary approach Nor does the Conventionpromote pollution prevention and toxic chemical reduction It does not ban trade

in hazardous chemicals but is aimed at preventing illegal international traffic indangerous chemicals The Convention does not establish a proactive chemicalmanagement regime, but envisages a reactive chemical-by-chemical addition tothe ‘prior informed consent’ procedure Before additional listings are possible,notifications are required from two different regions that a chemical is banned orseverely restricted A Chemical Review Committee must recommend listing andprepare a draft decision guidance document; and the Conference of the Partiesmust approve the listing

The Convention’s provisions on technical assistance are also slantedtowards promoting chemical use Nofinancial mechanism is established and nobinding financial commitments are made to assist developing countries or coun-tries with economies in transition General funding commitments are made topromote technical assistance so that countries can implement the Convention andmanage chemicals throughout their life-cycle

Global POPs Convention Initiative

In early 1997 the Governing Council of UNEP launched negotiationefforts to convene, together with relevant international organisations, an inter-governmental negotiating committee to prepare an international legally bindinginstrument for POPs The initial focus was to be on the so-called ‘dirty dozen’ per-sistent organic pollutants (aldrin, chlordane, DDT, dieldrin, dioxins and furans,endrin, heptachlor, hexachlorobenzene, mirex, PCBs, and toxaphene)

The negotiation process commenced in Montreal, in mid-1998, at whichtime the Intergovernmental Negotiating Committee (INC) for an InternationalLegally Binding Instrument for Implementing International Action on CertainPersistent Organic Pollutants considered some of the key sections necessary forinclusion in a future convention and suggested the completion of an international

33 The documents are reprinted in H Hohmann (ed.), Basic Documents of International

Environmental Law, Vol 1 (London: Graham & Trotman, 1992), pp 173–86 and 157–72,

respec-convention by the year 2000 The Committee decided to establish two groups toforge approaches in two critical areas An expert group on POPs has been man-dated to develop science-based criteria and a procedure for identifying other sub-stances for management actions Another group, on implementation aspects, was

to consider convention provisions on technical and financial assistance to oping countries and countries with economies in transition.34

devel-At the second negotiation session held in Nairobi, in January 1999,numerous issues remained unresolved One contentious point was the need for afinancial mechanism, like the multilateral fund of the Montreal Protocol Anotheropen question was whether those who had produced or exported POPs should beresponsible for the removal and destruction of unused stockpiles in developingcountries Details on technology transfer and non-compliance procedures alsoneeded to be worked out.35

Adoption of a strict precautionaryapproach seems unlikely A slowchemical-by-chemical regulatory approach is what is being endorsed Even forchemicals understood as being ‘super nasty’, gradual phase-outs are likely to berecommended for some, in order to allow the development of economicallyviable alternatives and to continue the battle against diseases such as malaria.Moreover, the Group of 77 and China pressed for the inclusion of various princi-ples in the Convention, such as the right to development and the need for

differential obligations for developing countries, which mayrun counter to cautionarymeasures.36The group of African countries emphasised the numerousobstacles to effective phasing out of POPs, such as the lack of national invento-ries, and the lack offinancial resources for research, monitoring and management

pre-of chemicals.37

The Global Programme of Action

The Global Programme of Action for the Protection of the MarineEnvironment from Land-Based Activities, adopted in November 1995 by over 100countries at a conference held in Washington DC, marked a further step in build-ing international consensus on the need for a global POPs convention Paragraph

88 of the GPA endorses the need for a global, legally binding instrument on POPsand highlights the need to address the technical and financial needs of developingcountries

The GPA also promises to promote national actions to control land-based

34Report of the Intergovernmental Negotiating Committee for an International Legally Binding Instrument for Implementing International Action on Certain Persistent Organic Pollutants on the Work of Its First Session, UNEP/POPS/INC.1/7, of 3 July 1998.

35Report of the Intergovernmental Negotiating Committee for an International Legally Binding Instrument for Implementing International Action on Certain Persistent Organic Pollutants on the Work of Its Second Session, UNEP/POPS/INC.2/6, of 29 January 1999. 36Ibid., Annex V.

37

pollution Its Chapter 2 calls on states to develop, within a few years’ time, nationalprogrammes of action Such national programmes should follow a six-stepprocess: identifying and assessing problems; establishing priorities; setting man-agement objectives; identifying and selecting management strategies and mea-sures; developing criteria for evaluating the effectiveness of strategies andprogrammes; and ensuring programme support, such as financial mechanismsand new legislation.

The GPA also encourages strengthening of regional cooperation toaddress land-based pollution and activities Its Chapter 3 calls for building institu-tional arrangements for regional cooperation and negotiating new regionalconventions, as appropriate Regional programmes of action are advocated; theseshould include the harmonisation of environmental standards, the protection ofcritical habitats and endangered species, the exploration of innovative financingmechanisms, and the identification of regional centres of excellence in researchand management training

Chapter 5 of the GPA urges national, regional and international action fornine specific problem areas Targets and actions are set for sewage, POPs, radio-active substances, heavy metals, oil (hydrocarbons), nutrients, sediments, litterand physical alterations/destruction of habitats

The GPA entrenches a utilitarian version of the precautionary approach,emphasising the validity of weighing environmental values and interests againsteconomic costs and benefits Paragraph 24 of the GPA states:

The precautionary approach should be applied through preventive and rective measures based on existing knowledge, impact assessments, resourcesand capacities at national level, drawing on pertinent information and analy-ses at the subregional, regional and global levels Where there are threats ofserious or irreversible damage, lack of full scientific certainty should not beused as a reason for postponing cost-effective measures to prevent thedegradation of the marine environment

cor-The effectiveness of the GPA remains uncertain Besides being full of undefinedbuzzwords and often stating the obvious, the GPA is weak on the financial side Itleaves implementation to the happenstance of available national funding andprivate sector contributions The GPA lists in an annex likely sources of financing,such as pollution fees, taxes and loans from international financial institutions, butdoes not include a trust fund or firm financial commitments to assist developingcountries and countries with economies in transition.38

The prospects for a global convention on land-based marine pollution donot look good ‘Treaty fatigue’ is evident: many developing countries in particularare averse to any further binding commitments until technical and financial

38 D L VanderZwaag, P Wells and J Karau, ‘The Global Programme of Action for the Protection of the Marine Environment from Land-Based Activities: A Myriad of Sounds, Will the World Listen?’,

assistance is assured State sovereignty concerns remain paramount, and calls for

differential standards between developed and developing countries constrain thefinding of common ground.39The broad array of activities needing to be controlledalso complicates the picture.40

-   - Various regional agreements and actions developed outside the Arcticregion proper promise to assist in controlling long-range pollutants, but they arealso limited in advocating a precautionary approach Key agreements adoptedunder the auspices of the UN Economic Commission for Europe include theProtocols on POPs and heavy metals adopted pursuant to the 1979 Convention onLong-Range Transboundary Air Pollution (LRTAP)41 and the Convention onEnvironmental Impact Assessment in a Transboundary Context.42 Also, fourregional action plans (covering DDT, chlordane, mercury and PCBs) have beenadopted pursuant to the North American Sound Management of ChemicalsInitiative

Protocol on Persistent Organic Pollutants (POPs)

The 1998 POPs Protocol to LRTAP,43adopted at Aarhus, Denmark, in June

1998, does include various provisions encouraging precautionaryand prevention approaches.The Preamble to the Protocol articulates the parties’ resolve

pollution-‘to take measures to anticipate, prevent or minimise emissions of persistent organicpollutants, taking into account the application of the precautionaryapproach, asset forth in principle 15 of the Rio Declaration on Environment and Development’.Twelve substances are targeted for elimination: aldrin, chlordane, chlordecone,DDT, dieldrin, endrin, heptachlor, hexabromobiphenyl, hexachlorbenzene, mirex,PCBs and toxaphene Parties also pledge to facilitate the exchange of informationand technologyfor reducing the generation and emissions of POPs and to developalternatives

In many ways, however, the Protocol is weak and not strictly ary For the twelve substances scheduled for elimination, some major exceptionsexist For example, production of DDT is to be eliminated only within one year ofconsensus by the parties that suitable alternatives are available for public health

precaution-39 D B Magraw, ‘Legal Treatment of Developing Countries: Di fferential, Contextual, and Absolute

Norms’, Colorado Journal of International Environmental Law & Policy, Vol 1, 1990, p 69.

40Qing-nan Meng, Land-Based Marine Pollution: International Law Development (London: Graham

& Trotman and Martinus Nijho ff, 1987).

41 ILM, Vol 18, 1979, pp 1,442 ff Additional protocols adopted but not discussed in this chapter include those on the European Monitoring and Evaluation Program (1984), Reduction of Sulphur Emissions (1985), Control of Nitrogen Oxide Emissions (1988), Control of Volatile Organic Compounds (1991) and Further Reduction of Sulphur Emissions (1994).

42 ILM, Vol 30, 1992, pp 800ff 43 Text available at www.unece.org/env.

protection from diseases such as malaria and encephalitis PCB production bycountries with economies in transition is to be eliminated as soon as possible, butthose countries are allowed to continue production until 31 December 2005 Whilecountries are required to reduce emissions of PAHs, dioxins and furans and hexa-chlorobenzene from a chosen reference year, no overall percentage reductions arerequired, and parties are mandated to apply best available techniques – a highlyflexible approach that permits consideration of economic, technical and practicalfactors Emission limit values for dioxins and furans are established for major sta-tionary sources – specifically, municipal and medical solid waste incinerators andhazardous waste incinerators – but the emission standards are diluted for existingstationary sources with the qualification ‘insofar as technically and econom-ically feasible’ The Protocol also allows eight years from the time of its entry intoforce for parties to apply the emission limits to existing sources.

The Protocol does not establish a comprehensive and proactive chemicalmanagement framework Only sixteen substances are initially designated forcontrol actions Parties can add substances one by one, according to agreed pro-cedures

Heavy Metals Protocol

The Protocol on Heavy Metals44 to LRTAP adopts precautionary and lution-prevention approaches in a rather limited fashion Its Preamble states theparties’ resolve to take anticipatory and prevention measures to minimise emis-sions of heavy metals and to take into account the precautionary approach as setforth in the Rio Declaration Parties are encouraged to develop alternatives to theuse of heavy metals in various products

pol-Several provisions of the Protocol run counter to strong precautionary orpollution-prevention approaches Only three heavy metals are subject to initialcontrols: cadmium, lead and mercury While parties are required to reduce totalannual emissions into the atmosphere from a reference year, no specific percent-age reductions are required Moreover, parties are mandated to apply best avail-able techniques to major stationary sources, leaving wide discretion as to controlmeasures Although emission limits are established for selected stationary sources,such as municipal, medical and hazardous waste incinerators, the limits for exist-ing sources are weakened by the loophole ‘insofar as technically and econom-ically feasible’ as well as the allowable eight-year delay in applicability from theProtocol’s entry into force

Product-control measures for lead in gasoline and for mercury content inbatteries are also not stringent in terms of precaution or prevention While the leadcontent of marketed petrol for on-road vehicles is not to exceed 0.013 g/l, states are

44

given the option of extending the cutback time period by up to ten years in case ofserious socio-economic or technical problems Although parties are required tolimit the content of mercury in alkaline manganese batteries, they are given up

tofive years (ten years in the case of countries with economies in transition) toachieve these concentration levels

Convention on Environmental Impact Assessment in a Transboundary Context

The 1991 UN/ECE Convention on Environmental Impact Assessment in

a Transboundary Context, requires parties to undertake environmental impactassessments (EIAs) for any proposed activities, listed in its Appendix I, likely tocause significant adverse transboundary impacts The Preamble notes the need foranticipatory policies and to prevent and mitigate significant adverse environ-mental effects in a transboundary context For activities subject to the EIA require-ment, the party of origin and the affected party must hold consultations wherepossible alternatives, including the no-action alternative, are to be considered andmitigation measures discussed

However, the Convention also displays several weaknesses, raising tions as to how precautionaryand anticipatoryactual state practice will be TheConvention, negotiated before the 1992 UN Conference on Environment andDevelopment, does not adopt the precautionaryprinciple or approach TheConvention’s list of activities subject to EIA is not comprehensive and could allowsome activities with substantial transboundaryenvironmental risks to escapeassessment, such as major port developments.45The Convention does not requireparties to applythe EIA provisions to proposed policies, plans or programmesthat mayhave significant transboundaryimpacts It leaves the final ‘go–no go’decision with the partyproposing the development activity And, finally, noexplicit provision is made for carrying out joint environmental assessmentreviews

ques-North American Sound Management of Chemicals Initiative

A further extra-regional effort for addressing hazardous substances is theNorth American Sound Management of Chemicals Initiative, launched in 1995under the auspices of the North American Commission for EnvironmentalCooperation,46whose Council of Ministers established a Working Group on theSound Management of Chemicals To be composed of two senior environmental

45Arctic Environmental Protection Strategy, Guidelines for Environmental Impact Assessment (EIA)

in the Arctic (Helsinki: Finnish Ministry of the Environment, 1997), p 41.

46 The Commission was established pursuant to the North American Agreement on Environmental Cooperation; see ILM, Vol 32, 1993, pp 1,480 ff.