Implementation and Compliance under the Minamata Convention on Mercury

• Published date: 01 July 2014
• Date: 01 July 2014
• Author: Jessica Templeton,Pia Kohler
• DOI: http://doi.org/10.1111/reel.12078

Implementation and Compliance under the

Minamata Convention on Mercury

Jessica Templeton and Pia Kohler

What contributed to the consensus to establish an

implementation and compliance mechanism during

the negotiations of the 2013 Minamata Convention on

Mercury? This outcome was inextricably linked to

consensus on establishing a financial mechanism that

was satisfactory to both developed and developing

country parties. However, given the complex

interlinkages between these issues, the history of dis-

cussions of compliance in closely related multilateral

environmental agreements, and the wide range of

interests and preferences among parties to the nego-

tiations, the path to consensus was not clear until late

in the negotiating process. While the compatibility

between the proposed mechanism and States’ inter-

ests was crucial to the outcome, the role of individu-

als in crafting the treaty text and facilitating

negotiations was also essential. Thus, a complete

analysis of the path to that agreement must consider

the role of individual leaders in strategically guiding

delegates to identify the points at which their inter-

ests converged.

INTRODUCTION

The consensus to establish a compliance mechanism

during the final stage of negotiations of the 2013

Minamata Convention on Mercury1was a significant

and unexpected achievement. Contrary to the expecta-

tions of many experienced negotiators, delegates to the

intergovernmental negotiating committee (INC) to

prepare a legally binding instrument on mercury not

only agreed on the need for a compliance mechanism,

but also defined and established structural elements of

an Implementation and Compliance Committee. This

outcome represents a significant departure from the

contentious, long-running debates in other multilateral

environmental agreements (MEAs), notably including

the Stockholm2and Rotterdam3Conventions. The

longstanding deadlock in these MEAs is particularly

interesting because many of the same individuals who

negotiated the Minamata Convention have participated

in the protracted discussions of this issue in both

working groups and plenary sessions under the aus-

pices of these two chemicals conventions. Why were the

negotiators of the Minamata Convention able to achieve

consensus to establish an Implementation and Compli-

ance Committee when many of the same negotiators

have been unable to make headway on this issue in

other contexts?

Two key factors facilitated States’ support for a compli-

ance mechanism in the Minamata Convention. First,

the financial provisions agreed upon by parties to the

negotiations provided credible assurances that funding

would be made available to support States’ efforts to

implement their obligations. Second, delegates

designed a mechanism that is facilitative in nature and

contains virtually all ‘carrots’ and no ‘sticks’; this

approach ensured that many States will be better off as

a result of the inclusion of the mechanism and no States

will be worse off. These factors were crucial in facilitat-

ing consensus to establish a compliance mechanism,

but the path to agreement was not clear; as this article

shows, this outcome was the product of careful strategic

leadership of experienced negotiators working within

the INC process.

Three methodological approaches underpin the

research for this article. First, our analysis is grounded

in participant observation of the five meetings of the

intergovernmental negotiating committee (INCs 1–5),

held between 2010 and 2013. Second, in order to trace

the process of decision making on compliance in MEAs,

we have analyzed both official and ephemeral docu-

ments produced during the Minamata negotiations, as

well as in the meetings of the conferences of parties to

1Minamata Convention on Mercury (Kumamoto,10 October 2013; not

yet in force) (‘Minamata Convention’). For an overview of the Con-

vention, see H. Hallgrim Eriksen and F.X. Perrez, ‘The Minamata

Convention: A Comprehensive Response to a Global Problem’, 23:2

Review of European, Comparative and International Environmental

Law (2014).

2Stockholm Convention on Persistent Organic Pollutants (Stock-

holm, 22 May 2001; in force 17 May 2004) (‘Stockholm Convention’).

3Rotterdam Convention on the Prior Informed Consent Procedure for

Certain Hazardous Chemicals and Pesticides in International Trade

(Rotterdam, 10 September 1998; in force 24 February 2004) (‘Rot-

terdam Convention’).

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Review of European Community & International Environmental Law

RECIEL 23 (2) 2014. ISSN 2050-0386 DOI: 10.1111/reel.12078

© 2014 John Wiley & Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA.

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