Editorial

• Author: Harro Asselt
• Published date: 01 July 2014
• Date: 01 July 2014
• DOI: http://doi.org/10.1111/reel.12085

Editorial

The end of 2013 marked the adoption of the first mul-

tilateral environmental agreement in a decade, with the

Minamata Convention on Mercury seemingly counter-

ing the trend of an increasing turn to softer forms of

regulation in the international environmental arena.

Clearly, whether the adoption of the Minamata Conven-

tion will spark a renaissance of hard international law

in the field of the environment remains to be seen. Yet

the very fact that countries across the world managed to

agree on a new environmental treaty in the first place is

remarkable, especially following disappointments such

as the Copenhagen climate summit in 2009 and the

Rio+20 meeting in 2012.

The Minamata Convention is not only a milestone in

the development of international environmental law,

but it also draws attention to interesting new develop-

ments in the area of chemicals regulation. Like many

other issue areas (e.g., biodiversity), international regu-

lation on chemicals has largely developed in a piece-

meal fashion, with treaties covering only a limited

number of chemical substances or providing a partial

response to the problem of chemical risks. Arguably,

the Minamata Convention continues that approach by

tackling only one substance – mercury. However, there

is an increasing recognition of the need for more com-

prehensive approaches that cover the wide range of

potentially hazardous chemicals throughout their

entire life cycle. The Minamata Convention is an impor-

tant step forward in that respect, as it is the first legally

binding treaty addressing most, if not all, aspects of

mercury pollution. Other developments in interna-

tional chemicals regulation also point to more compre-

hensive responses. Notably, the non-legally binding

Strategic Approach to International Chemicals Man-

agement (SAICM), established in 2006, seeks to

achieve the sound management of chemicals by 2020

through a cross-sectoral approach addressing the full

life cycle of chemicals. In addition, the Basel, Rotter-

dam and Stockholm Conventions have pioneered new

approaches to enhance synergies among the treaties.

The treaties have established a common secretariat and

have, by now, held two ‘simultaneous extraordinary’

Conferences of the Parties, bringing the decision-

making bodies of all three treaties together.

Chemicals regulation has also been marked by new

developments at the European Union (EU) level. The

key instrument of EU law, the REACH (Registration,

Evaluation, Authorisation and Restriction of Chemi-

cals) Regulation, has been in force now for over six

years. REACH has played an important part in stream-

lining and expanding the European response to chemi-

cal risks, but its sheer breadth has raised a wide variety

of legal issues, including its relationship with other EU

legislation that may be applicable to certain chemical

substances.

This special issue offers a timely examination of the new

developments in international and European chemicals

regulation. The practitioners and scholars contributing

to the issue examine chemicals regulation from several

angles, including the very concept of ‘chemicals’, the

development and effectiveness of global chemicals gov-

ernance, the history of the Minamata Convention and

the functioning of the REACH Regulation.

The issue starts with a thought-provoking article by

Elizabeth Fisher, who challenges the idea that the

object of regulation – a ‘chemical’ – is straightforward.

Drawing on three different examples – the Toxic Sub-

stances Control Act in the United States, the EU

REACH Regulation and the Green Chemistry Initiative

in California – she shows how chemicals are seen as

risky, market or scientific objects in these different

regulatory regimes. With reference to the television

show Breaking Bad, Fisher argues that chemicals are

malleable objects. The lesson to be learned, she sug-

gests, is that international regulation of chemicals

should take into account the fact that under different

jurisdictions the ‘chemical’ to be regulated may signify

different things.

The next two articles adopt a systemic perspective on

international chemicals regulation. Katharina Kummer

Peiry – former Executive Secretary of the Basel Conven-

tion – first analyzes the shortcomings of the piecemeal

approach to chemicals regulation. Although she views

the SAICM, the Basel-Rotterdam-Stockholm synergies

process and the Minamata Convention’s life-cycle

approach as important steps forward, she suggests that

a logical next step would be to adopt a framework con-

vention on the sustainable management of potentially

hazardous materials. She explores the practical and

legal feasibility of such a convention, concluding that

while these practical and legal barriers are not insur-

mountable, political will is needed to move such an

initiative forward.

The subsequent article by Daryl Ditz and Baskut

Tuncak also offers suggestions for reform of global

chemicals governance. The authors start with a detailed

crosscutting analysis of the existing chemicals conven-

tions (as well as the SAICM), concluding that the

current governance system falls short of the 2020 goal

to achieve sound management of chemicals. In particu-

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Review of European Community & International Environmental Law

RECIEL 23 (2) 2014. ISSN 2050-0386 DOI: 10.1111/reel.12085

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