INTERGOVERNMENTAL NEGOTIATING COMMITTEE FOR AN
  INTERNATIONAL LEGALLY BINDING INSTRUMENT FOR
  IMPLEMENTING INTERNATIONAL ACTION ON
  CERTAIN PERSISTENT ORGANIC POLLUTANTS

Second session
Nairobi, 25-29 January 1999
Item 5 of the provisional agenda^*

PREPARATION OF AN INTERNATIONAL LEGALLY BINDING INSTRUMENT FOR IMPLEMENTING
INTERNATIONAL ACTION ON CERTAIN PERSISTENT ORGANIC POLLUTANTS

Expanded outline of an international legally binding instrument for

implementing international action on certain

persistent organic pollutants

Note by the secretariat

 

INTRODUCTION

At its first session, held from 29 June to 3 July 1998 in Montreal, the Intergovernmental Negotiating Committee for an International Legally Binding Instrument for Implementing International Action on Certain Persistent Organic Pollutants requested the secretariat to prepare a draft discussion text for the legally binding instrument that would build, inter alia, upon the notes by the secretariat on possible substantive articles of an international legally binding instrument for implementing international action on certain organic pollutants (POPs) (UNEP/POPS/INC.1/4) and on final provisions for the instrument (UNEP/POPS/INC.1/5) and would take into account comments and suggestions made at the first session and submissions received from Governments by 1 September 1998. That text would provide the basis for

discussions on the main provisions of the legally binding instrument at the next session of the Intergovernmental Negotiating Committee.

In response to the above request, the secretariat has prepared the attached draft expanded outline, of an international legally binding instrument for implementing international action on certain POPs. Without prejudice to any approaches that the Committee may wish to consider, this document could serve as a possible starting point for the development of the draft text of an international legally binding instrument on POPs.

In preparing this draft outline the relevant provisions contained in a number of existing environmental conventions and other instruments, in particular those listed below, have been fully taken into account:

(a) Vienna Convention on the Protection of the Ozone Layer;

(b) Montreal Protocol on Substances that Deplete the Ozone Layer;

(c) Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal;

(d) Convention on Biological Diversity;

(e) United Nations Framework Convention on Climate Change;

(f) United Nations Convention to Combat Desertification in those Countries Experiencing Serious Drought and/or Desertification, particularly in Africa;

(g) Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade; and

(h) Protocol to the Convention on Long-range Transboundary Air Pollution on Persistent Organic Pollutants, prepared under the auspices of the United Nations Economic Commission for Europe.

In the draft outline, the international legally binding instrument for implementing international action on certain persistent organic pollutants is referred to as "the convention", without prejudice to the title of the future instrument.

The draft outline does not attempt to cover certain aspects of the convention. First, no text is included under the "Preamble", "Definitions" or "Objectives" sections, because the Committee decided at its first session that those sections should be dealt with at a later stage in the negotiations (see paragraph 38 of the report of the first session, UNEP/POPS/INC.1/7). The titles of those sections are included, without prejudice to any titles that the Committee may wish to consider, as placeholders, since they are included in the list of possible articles generally accepted by the Committee at its first session (paragraphs 37-53 of UNEP/POPS/INC.1/7).

Second, no text is included under the article entitled "Process for adding chemicals to the Convention" and the annex entitled "Criteria and a procedure for identifying additional persistent organic pollutants", because those criteria and procedure are yet to be developed by the Criteria Expert Group established for that purpose by the Committee at its first session (paragraphs 67 and 68 and annex II of UNEP/POPS/INC.1/7). The title of this article and its related annex are included, without prejudice to any titles that the Committee may wish to consider, as placeholders, since the article is included in the list of possible articles generally accepted by the Committee at its first session (paragraphs 37-53 of UNEP/POPS/INC.1/7).

Third, no text is included under the articles entitled "Technical assistance" and "Financial resources and mechanisms", because such issues are to be examined by the Working Group on Implementation Issues established for that purpose by the Committee at its first session (paragraphs 59-63 of UNEP/POPS/INC.1/7). The titles of those articles are included, without prejudice to any titles that the Committee may wish to consider, as placeholders, since they are included in the list of possible articles generally accepted by the Committee at its first session (paragraphs 37-53 of UNEP/POPS/INC.1/7).

Fourth, no attempt was made to include specific control measures for particular chemicals.

Proposals were made at the first session of the Committee that the convention might incorporate other provisions not included in notes UNEP/POPS/INC.1/4 and UNEP/POPS/INC.1/5. The other provisions proposed were:

(a) Inventory requirements;

(b) Liability and compensation;

(c) Remediation and clean-up of contaminated sites;

(d) Sales and trade;

(e) Regional cooperation; and

(f) Transportation, storage and distribution.

Those provisions have not been included in the present draft outline, but may be incorporated if the Committee so agrees.

Submissions pertaining to the draft outline were received from a number of Governments and non-governmental organizations. Their comments are included in the information documents UNEP/POPS/INC.2/INF/1 and UNEP/POPS/INC.2/INF/2, respectively.

Among the submissions were suggestions that the draft outline should include articles covering exemptions and scope. These were not incorporated in the draft, because they had not previously been included in notes UNEP/POPS/INC.1/4 and UNEP/POPS/INC.1/5 or discussed in any detail by the Committee at its first session. Such articles could be incorporated into the draft outline text if the Committee so agrees. It was also suggested that the draft outline might include specific requirements for the national implementation plans. Because such plans will need to be sufficiently dynamic to accommodate changing priorities and new information, it was thought that a more flexible approach might be to leave the determination of schedules for, and format of, the national implementation plans to the Conference of Parties.

Appendix

EXPANDED OUTLINE FOR AN INTERNATIONAL LEGALLY BINDING INSTRUMENT
FOR IMPLEMENTING INTERNATIONAL ACTION ON
CERTAIN PERSISTENT ORGANIC POLLUTANTS

A. Preamble

[to be developed later in the Intergovernmental Negotiating Committee process]

B. Objective

[to be developed later in the Intergovernmental Negotiating Committee process]

C. Definitions

[to be developed later in the Intergovernmental Negotiating Committee process]

D. Measures to reduce or eliminate releases

Prohibition of the production and use of certain persistent organic pollutants

1. Each Party shall prohibit the production and use of the chemicals listed in Annex A in accordance with the schedules contained in that Annex.

Restrictions on the production and use of certain persistent organic pollutants

2. Each Party shall prohibit the production or use of the chemicals listed in Annex B, except for the purposes specified therein, in accordance with the schedules contained in that Annex.

Reduction in the release of certain persistent organic pollutants with the aim of their elimination

3. Each Party shall:

(a) Develop and maintain release inventories for the chemicals listed in part I of Annex C, according to the requirements contained therein;

(b) Promote the use of best available technologies and techniques to reduce releases of chemicals listed in part II of Annex C, according to the requirements contained therein; and

(c) Reduce its total annual releases of each of the chemicals listed in part III of Annex C, from the base level of release in a reference year set in accordance with that Annex.

Management and disposal of stockpiles of certain persistent organic pollutants

4. For the chemicals listed in Annexes A, B or C, each Party shall:

(a) Endeavour to develop appropriate strategies for identifying products and articles still in use and wastes containing such chemicals; and

(b) Take appropriate measures to ensure that such wastes and such products and articles, upon becoming wastes, are destroyed or disposed of in an environmentally sound manner.

The above-mentioned undertakings shall take into account relevant subregional, regional and global regimes governing the management of hazardous wastes, in particular the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal. For the purposes of this paragraph, the terms waste, disposal, and environmentally sound shall be interpreted in a manner consistent with the use of those terms under the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal.

E. National implementation plans

Each Party shall develop national plans for the implementation of the provisions of this Convention and transmit them to the Conference of Parties according to a schedule and a format to be determined by the Conference of Parties.

F. Process for adding chemicals to the convention

[to be developed by the Criteria Expert Group]

G. Information exchange

The Parties shall, in a manner consistent with their laws, regulations and practices, facilitate the exchange of information relevant to the reduction or elimination of the production, use or release of persistent organic pollutants and develop cost-effective alternatives, by promoting, inter alia, the exchange of and access to information on the development and use of alternatives to persistent organic pollutants, as well as on the evaluation of the risks that such alternatives pose to human health and the environment, and information on the economic and social costs of such alternatives; and the exchange of information on activities related to such alternatives which are conducted in other international forums.

H. Public information, awareness and education

The Parties shall:

(a) Promote and facilitate at the national and, as appropriate, subregional and regional levels, and in accordance with national laws and regulations, and within their respective capacities:

(i) The provision of information on persistent organic pollutants to the public, including those who use or release persistent organic pollutants, including information pertaining to the assessment of hazard and risk; to pollution prevention; to risk reduction; economic and social impacts; and alternative products and processes for individuals and enterprises that produce, use or release persistent organic pollutants;

(ii) The development and implementation of educational and public awareness programmes on persistent organic pollutants and their health and environmental effects;

(iii) Public participation in relevant fora addressing persistent organic pollutants and their health and environmental effects and developing adequate responses; and

(iv) Training of scientific, technical and managerial personnel;

(b) Cooperate in and promote, at the international level, and, where appropriate, using existing bodies:

(i) The development and exchange of educational and public awareness materials on persistent organic pollutants and their health and environmental effects; and

(ii) The development and implementation of education and training programmes, including the strengthening of national institutions and the exchange or secondment of personnel to train experts in this field, in particular for developing countries and countries with economies in transition.

I. Research, development and monitoring

1. The Parties shall encourage research, development, monitoring and cooperation pertaining to persistent organic pollutants related, but not limited, to:

(a) Releases, persistence in different environmental media, long-range transport and deposition levels and their modelling, existing levels in the biotic and abiotic environment;

(b) Pollutant pathways and inventories in representative ecosystems;

(c) Relevant effects on human health and the environment;

(d) Best available techniques and practices to prevent, reduce or eliminate their environmental release, including agricultural practices, and pollution prevention and release control techniques and practices currently employed by the Parties or under development;

(e) Possible alternative chemicals, processes, methods or technologies for the chemicals listed in Annexes A and B, and possible alternative practices and technologies for the chemicals listed in Annex C;

(f) Methodologies permitting the consideration of social and economic factors in the evaluation of alternative release reduction or elimination strategies;

(g) Approaches which integrate appropriate information, including information obtained under subparagraphs (a) to (e) above, on measured or modelled environmental levels, pathways, and effects on human health and the environment, for the purpose of formulating future control strategies which also take into account economic, social and technological factors;

(h) Methods for estimating national releases and projecting future releases of individual persistent organic pollutants and for evaluating how such estimates and projections can be used to structure future obligations; and

(i) Levels of chemicals subject to the Convention that are contained as contaminants in other substances, chemical products, manufactured articles or residual materials, and the significance of these levels for long-range transport, as well as techniques to reduce levels of these contaminants.

2. In undertaking action under paragraph 1 of this article, the Parties shall:

(a) Support and further develop, as appropriate, international programmes, networks and organizations aimed at defining, conducting, assessing and financing research, data collection and monitoring, taking into account the need to minimize duplication of effort;

(b) Support international efforts to strengthen national scientific and technical research capacities and capabilities, particularly in developing countries, and to promote access to, and the exchange of, data and analyses obtained from areas beyond national jurisdiction; and

(c) Take into account the particular concerns and needs of developing countries and countries with economies in transition and cooperate in improving their endogenous capacities and capabilities to participate in the efforts referred to in subparagraphs (a) and (b) above.

J. Technical assistance

[to be developed by the Working Group on Implementation Aspects]

K. Financial resources and mechanisms

[to be developed by the Working Group on Implementation Aspects]

L. Reporting

Each Party shall report to the Conference of the Parties measures which it has taken to implement the provisions of this Convention and their effectiveness in meeting the objectives of this Convention at intervals and in a format to be determined by the Conference of the Parties.

M. Non-compliance

The Conference of the Parties shall, as soon as practicable, develop and approve procedures and institutional mechanisms for determining non-compliance with the provisions of this Convention and for the treatment of Parties found to be in non-compliance.

N. Settlement of disputes

1. Parties shall settle any dispute between them concerning the interpretation or application of the Convention through negotiation or other peaceful means of their own choice.

2. When ratifying, accepting, approving or acceding to this Convention, or at any time thereafter, a Party may declare in a written instrument submitted to the Depositary that, with respect to any dispute concerning the interpretation or application of the Convention, it recognizes one or both of the following means of dispute settlement as compulsory in relation to any Party accepting the same obligation:

(a) Arbitration in accordance with procedures adopted by the Conference of the Parties in an annex as soon as practicable; and

(b) Submission of the dispute to the International Court of Justice.

3. A declaration made pursuant to paragraph 2 shall remain in force until it expires in accordance with its terms or until three months after written notice of its revocation has been deposited with the Depositary.

4. The expiry of a declaration, a notice of revocation or a new declaration shall not in any way affect proceedings pending before an arbitral tribunal or the International Court of Justice unless the parties to the dispute otherwise agree.

5. If the parties to a dispute have not accepted the same or any procedure pursuant to paragraph 2, and if they have not been able to settle their dispute within twelve months following notification by one Party to another that a dispute exists between them, the dispute shall be submitted to a conciliation commission at the request of any party to the dispute. The conciliation commission shall render a report with recommendations. Additional procedures relating to the conciliation commission shall be included in an annex adopted by the Conference of the Parties no later than the second meeting of the Conference of the Parties.

O. Conference of Parties

1. A Conference of the Parties is hereby established.

2. The first meeting of the Conference of the Parties shall be convened by the Executive Director of the United Nations Environment Programme no later than one year after the entry into force of this Convention. Thereafter, ordinary meetings of the Conference of the Parties shall be held at regular intervals to be determined by the Conference.

3. Extraordinary meetings of the Conference of the Parties shall be held at such other times as may be deemed necessary by the Conference, or at the written request of any Party, provided that it is supported by at least one third of the Parties.

4. The Conference of the Parties shall by consensus agree upon and adopt at its first meeting rules of procedure and financial rules for itself and any subsidiary bodies, as well as financial provisions governing the functioning of the secretariat.

5. The Conference of the Parties shall keep under continuous review and evaluation the implementation of this Convention. It shall perform the functions assigned to it by the Convention and, to this end, shall:

(a) Establish such subsidiary bodies as it considers necessary for the implementation of the Convention;

(b) Cooperate, where appropriate, with competent international organizations and intergovernmental and non-governmental bodies; and

(c) Consider and undertake any additional action that may be required for the achievement of the objectives of the Convention.

6. The United Nations, its specialized agencies and the International Atomic Energy Agency, as well as any State not Party to this Convention, may be represented at meetings of the Conference of the Parties as observers. Any body or agency, whether national or international, governmental or non-governmental, qualified in matters covered by the Convention, and which has informed the Secretariat of its wish to be represented at a meeting of the Conference of the Parties as an observer may be admitted unless at least one third of the Parties present object. The admission and participation of observers shall be subject to the rules of procedure adopted by the Conference of the Parties.

P. Secretariat

1. A secretariat is hereby established.

2. The functions of the secretariat shall be:

(a) To make arrangements for meetings of the Conference of the Parties and its subsidiary bodies and to provide them with services as required;

(b) To compile reports for transmission to the Conference of Parties as needed by the Conference of Parties;

(c) To facilitate assistance to the Parties, particularly developing Parties and Parties with economies in transition, on request, in the implementation of this Convention;

(d) To prepare reports on the execution of its functions under this Convention and present them to the Conference of the Parties;

(e) To ensure the necessary coordination with the secretariats of other relevant international bodies;

(f) To enter, under the overall guidance of the Conference of the Parties, into such administrative and contractual arrangements as may be required for the effective discharge of its functions; and

(g) To perform the other secretariat functions specified in this Convention and such other functions as may be determined by the Conference of the Parties.

3. The secretariat functions for this Convention shall be performed by the Executive Director of the United Nations Environment Programme (UNEP), subject to the approval of the Conference of the Parties.

Q. Amendments to the Convention

1. Amendments to this Convention may be proposed by any Party.

2. Amendments to this Convention shall be adopted at a meeting of the Conference of the Parties. The text of any proposed amendment shall be communicated to the Parties by the secretariat at least six months before the meeting at which it is proposed for adoption. The secretariat shall also communicate proposed amendments to the signatories to this Convention and, for information, to the Depositary.

3. The Parties shall make every effort to reach agreement on any proposed amendment to this Convention by consensus. If all efforts at consensus have been exhausted, and no agreement reached, the amendment shall as a last resort be adopted by a three-fourths majority vote of the Parties present and voting at the meeting.

4. The amendment shall be communicated by the Depositary to all Parties for ratification, acceptance or approval.

5. Ratification, acceptance or approval of an amendment shall be notified to the Depositary in writing. An amendment adopted in accordance with paragraph 3 shall enter into force for the Parties having accepted it on the ninetieth day after the date of deposit of instruments of ratification, acceptance or approval by at least three-fourths of the Parties. Thereafter, the amendment shall enter into force for any other Party on the ninetieth day after the date on which that Party deposits its instrument of ratification, acceptance or approval of the amendment.

6. For the purpose of this Article, "Parties present and voting" means Parties present and casting an affirmative or negative vote.

R. Adoption and amendment of annexes

1. Annexes to this Convention shall form an integral part thereof and, unless expressly provided otherwise, a reference to this Convention constitutes at the same time a reference to any annexes thereto.

2. Annexes shall be restricted to procedural, scientific, technical or administrative matters.

3. The following procedure shall apply to the proposal, adoption and entry into force of additional annexes to this Convention:

(a) Additional annexes shall be proposed and adopted according to the procedure laid down in paragraphs 1, 2, and 3 of Article Q;

(b) Any Party that is unable to accept an additional annex shall so notify the Depositary, in writing, within one year from the date of communication of the adoption of the additional annex by the Depositary. The Depositary shall without delay notify all Parties of any such notification received. A Party may at any time withdraw a previous notification of non-acceptance in respect of any additional annex and the annex shall thereupon enter into force for that Party subject to subparagraph (c) below; and

(c) On the expiry of one year from the date of the communication by the Depositary of the adoption of an additional annex, the annex shall enter into force for all Parties that have not submitted a notification in accordance with the provisions of subparagraph (b) above.

4. The proposal, adoption and entry into force of amendments to annexes to this Convention shall be subject to the same procedures as for the proposal, adoption and entry into force of additional annexes to the Convention.

5. If an additional annex or an amendment to an annex is related to an amendment to this Convention, the additional annex or amendment shall not enter into force until such time as the amendment to the Convention enters into force.

S. Right to vote

1. Each Party to this Convention shall have one vote, except as provided for in paragraph 2 below.

2. A regional economic integration organization, on matters within its competence, shall exercise its right to vote with a number of votes equal to the number of its member States that are Parties to this Convention. Such an organization shall not exercise its right to vote if any of its member States exercises its right to vote, and vice versa.

T. Signature

This Convention shall be open for signature at _____ by all States and regional economic integration organizations from ___ to ___, and at the United Nations Headquarters in New York from ___ to ___.

U. Ratification, acceptance, approval or accession

1. This Convention shall be subject to ratification, acceptance or approval by States and by regional economic integration organizations. It shall be open for accession by States and by regional economic integration organizations from the date on which the Convention is closed for signature. Instruments of ratification, acceptance, approval or accession shall be deposited with the Depositary.

2. Any regional economic integration organization that becomes a Party to this Convention without any of its member States being a Party shall be bound by all the obligations under the Convention. In the case of such organizations, one or more of whose member States is a Party to this Convention, the organization and its member States shall decide on their respective responsibilities for the performance of their obligations under the Convention. In such cases, the organization and the member States shall not be entitled to exercise rights under the Convention concurrently.

3. In its instrument of ratification, acceptance, approval or accession, a regional economic integration organization shall declare the extent of its competence in respect of the matters governed by this Convention. Any such organization shall also inform the Depositary, who shall in turn inform the Parties, of any relevant modification in the extent of its competence.

V. Entry into force

1. This Convention shall enter into force on the ninetieth day after the date of deposit of the fiftieth instrument of ratification, acceptance, approval or accession.

2. For each State or regional economic integration organization that ratifies, accepts or approves this Convention or accedes thereto after the deposit of the fiftieth instrument of ratification, acceptance, approval or accession, the Convention shall enter into force on the ninetieth day after the date of deposit by such State or regional economic integration organization of its instrument of ratification, acceptance, approval or accession.

3. For the purpose of paragraphs 1 and 2 above, any instrument deposited by a regional economic integration organization shall not be counted as additional to those deposited by member States of that organization.

W. Reservations

No reservations may be made to this Convention.

X. Withdrawal

1. At any time after three years from the date on which this Convention has entered into force for a Party, that Party may withdraw from the Convention by giving written notification to the Depositary.

2. Any such withdrawal shall take effect upon expiry of one year from the date of receipt by the Depositary of the notification of withdrawal, or on such later date as may be specified in the notification of withdrawal.

Y. Depositary

The Secretary-General of the United Nations shall be the Depositary of this Convention.

Z. Authentic texts

The original of this Convention, of which the Arabic, Chinese, English, French, Russian and Spanish texts are equally authentic, shall be deposited with the Secretary-General of the United Nations.

IN WITNESS WHEREOF the undersigned, being duly authorized to that effect, have signed this Convention.

Done at ___________________ on this _____ day of _____, two thousand.

Annex A

CHEMICALS THE PRODUCTION AND USE OF WHICH ARE PROHIBITED

For each of the chemicals listed below, all production and all use is prohibited as of the dates specified for each:

Annex B

CHEMICALS THE PRODUCTION AND USE OF WHICH ARE RESTRICTED

AND ASSOCIATED IMPLEMENTATION REQUIREMENTS

PART I: PRODUCTION RESTRICTIONS

PART II: DEFINITIONS PERTAINING TO PRODUCTION RESTRICTIONS

For the purpose of Part I of this Annex:

(a) "xxxxx" means ....

PART IV: DEFINITIONS PERTAINING TO USE RESTRICTIONS

For the purpose of Part III of this Annex:

Annex C

CHEMICALS SUBJECT TO CERTAIN RELEASE REPORTING

AND RELEASE REDUCTION OR ELIMINATION MEASURES

AND ASSOCIATED IMPLEMENTATION REQUIREMENTS

PART I: CHEMICALS SUBJECT TO RELEASE INVENTORY REPORTING REQUIREMENTS

PART II: CHEMICALS SUBJECT TO CERTAIN TECHNICAL REQUIREMENTS

For each of the chemicals listed below, the Parties shall take appropriate measures to promote the use of best available technologies to prevent, reduce or eliminate their release into the environment. Parties should cooperate with non-governmental organizations and intergovernmental organizations in the development of technical guidance to assist Parties in identifying the best available technologies that are also cost-effective. For each of the chemicals listed below, one or more specific technology requirements or release limit values may apply which are also listed below.

PART III: CHEMICALS SUBJECT TO TOTAL ANNUAL RELEASE REDUCTION OR ELIMINATION TARGETS

PART IV: Definitions pertaining to this Annex

For the purposes of this Annex:

(a) "zzzz" means...

Annex IV

CRITERIA AND A PROCEDURE FOR IDENTIFYING ADDITIONAL
PERSISTENT ORGANIC POLLUTANTS

[to be developed by the Criteria Expert Group]