1 The Stockholm Convention on Persistent Organic Pollutants, opened for signature May 23, 2001, UN Doc. UNEP/POPS/CONF/4, App. II (2001), reprinted in 40 ILM 532 (2001) [hereinafter Stockholm Convention]. The text of the convention and additional information about POPs is available online at the United Nations Environment Programme’s (UNEP’s) POPs Web site, <http://irptc.unep.ch/pops/>.

2 See Stockholm Convention, supra note 1, Art. 1 (“Objective”).

3 See id., Arts. 3-6.

4 The substances are aldrin, chlordane, dieldrin, endrin, heptachlor, mirex, toxaphene, DDT, hexachlorobenzene (HCB), PCBs, dioxins, and furans. The substances include pesticides, industrial chemicals, and by-product contaminants (for example, dioxins and furans). The process and criteria to add new substances is discussed infra pp. 704-06. Information about toxic substances, including those listed here, is available online at the Web site of the U.S. Agency for Toxic Substances and Disease Registry, <http://www.atsdr.cdc.gov>.

5 For the final report on the fifth and last session of the Intergovernmental Negotiating Committee, see UN Doc. UNEP/POPS/INC.5/7 (2000), available at <http://irptc.unep.ch/pops> [hereinafter INC-5 Final Report].

6 See David Hunterjames Salzman, & Durwood Zaelke, International Environmental Law and Policy (1998) (highlighting toxic chemicals and hazardous wastes as one of four major types of global environmental problems).

7 A still-informative review of the problem of sliding to a “lowest common denominator” in environmental treaty negotiations is found in Peter, H. Sand, International Cooperation: The Environmental Experience, in Preserving The Global Environment: The Challenge of Shared Leadership 236 (Jessica, Tuchman Mathews ed., 1991)Google Scholar.

8 This approach was seen by some as going narrow but deep, rather than wide and (potentially) shallow.

9 As described in other studies, the use of a framework convention can, in some situations, help maintain momentum for international action—by setting in place necessary structures while avoiding certain types of decisions (for example, regarding control obligations) that countries might not yet be ready to take. See, e.g., Sand, supra note 7.

10 See, e.g., Country Reports on Toxic Chemicals, at <http://www.un.org/esa/sustdev/toxicc.htm> (submitted to the United Nations pursuant to Agenda 21, see infra note 20 and accompanying text). Significant differences exist among countries, however, in the level of regulatory control and in the capacity to implement such controls. See, e.g., World Resources Institute, World Resources, 1998-1999: Environmental Change and Human Health (1998) [hereinafter World Resources 1998-1999]; Philippine Case Study:A Developing Country’s Perspective on POPs (1996), at <http://irptc.unep.ch/pops/>.

11 See, e.g., Lee Botts & Paul Muldoon, The Great Lakes Water Quality Agreement: Its Past Successes and Uncertain Future, Paper presented at the Institute of International Environmental Governance, Dartmouth College (Nov. 1996), at (<http://www.on.ec.gc.ca/glwqa/> (describing an evolution in the field, from obvious sources of water contamination to the less visible problem of persistent toxics). Past experience with the introduction and widespread use of certain (now infamous) products whose negative effects were discovered only later—such as DDT, PCBs, and CFCs—provides another cautionary illustration.

12 See, e.g., Colborn, Theo, Dumanoski, Dianne, & John, Peterson Myers, Our Stolen Future (1996)Google Scholar (reviewing a wide variety of data and research on these issues); Arctic Monitoring and Assessment Project, Arctic Pollution Issues: A State of the Arctic Environment Report, at <http://www.amap.no> [hereinafter AMAP Report] (report by a monitoring and assessment program in which eight circumpolar nations are involved); Rodan, Bruce, Eckley, Noelle, & Robert, S. Boethling, International Action on Persistent Organic Pollutants (POPs): Developing Science-Based Screening Criteria, in Proceedings of the Subregional Awareness Raising Workshop on Persistent Organic Pollutants (POPs), Cartagena, Colombia 70 (1998)Google Scholar [hereinafter Cartagena Proceedings] ; Fiedler, Heidi, Polychlorinated Biphenyls (PCBs): Uses and Environmental Releases, in Cartagena Proceedings 128 Google Scholar, supra. The Cartagena Proceedings are available online at <http://irptc.unep.ch/pops/>.

13 See sources cited supra note 12.

14 Id. Migratory species are another form of environmental transport.

15 See AMAP Report, supra note 12; Rodan, Eckley, & Boethling, supra note 12.

16 See sources cited supra note 12.

17 Sec AMAP Report, supra note 12; Colborn, Dumanoski, & Myers, supra note 12. These sources describe many examples, including declines in the United States of bald eagles and peregrine falcons due to DDT.

18 See, e.g., AMAP Report, supra note 12, ch. 12.

19 For example, UNEP’s Chemicals Program, at <http://www.chem.unep.ch>, its Montevideo Environmental Law Programme, see, e.g., Implementation of the Programme for the Development and Periodic Review of Environmental Law for the 1990s, UN Doc. UNEP/Env.Law/4/3 (2000), and the Organisation for Economic Co-operation and Development’s Environment, Health and Safety Programme, at <http://www.oecd.org/env/health/>.

20 UN Conference on Environment and Development, Agenda 21, ch. 19 (“Environmentally Sound Management of Toxic Chemicals, Including Prevention of Illegal International Traffic in Toxic and Dangerous Products”), at <http://www.un.org/esa/sustdev/agenda21text.htm>.

21 Id., para. 19.49(b)-(c).

22 See, e.g., Secretariat of the Commission for Environmental Cooperation, Overview and Update on the Sound Management of Chemicals Initiative Under the North American Agreement on Environmental Cooperation, Council Resolution #95-5 (1998), at <http://www.cec.org/programs_projects/pollutants_health/smoc/> (discussing progress of initial, October 1995 call for regional action plans); Binational Strategy for the Virtual Elimination of Persistent Toxic Substances in the Great Lakes, U.S.-Can., April 7, 1997; Washington Declaration on Protection of the Marine Environment from Land-Based Activities, at <http://irptc.unep.ch/pops> (1995); Global Programme of Action for Protection of the Marine Environment from Land-Based Activities, para. 88, UN Doc. UNEP(OCA)/LBA/IG.2/7 (1995), available at <http://irptc.unep.ch/pops>; Protocol to the 1979 Convention on Long-Range Transboundary Air Pollution, June 24, 1998, at <http://www.unece.org/env/lrtap/> [hereinafter LRTAP POPs Protocol].

23 Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade, Sept. 11, 1998, UN Doc. UNEP/FAO/PIC/CONF/2 (1998), reprinted in 38 ILM 1 (1999),

available at <irptc.unep.ch>.

24 The Web site of the Intergovernmental Forum on Chemical Safety is at <http://www.who.int/ifcs/>.

23 UNEP Governing Council Decision 18/32 (May 25, 1995), at <http://irptc.unep.ch/pops>.

26 UNEP Governing Council Decision 19/13C (Feb. 7, 1997), at <http://irptc.unep.ch/pops>. The final report of the Intergovernmental Forum on Chemical Safety to UNEP, IFCS Doc. IFCS/WG.POPs/Report.1, is available at <http://irptc.unep.ch/pops>.

27 UNEP Governing Council Decision 19/13C, supra note 26, paras. 4, 8, 11, 12, & annex.

28 See Overview of Outcomes from POPs Awareness Raising Workshop Working Groups, at <http://irptc.unep.ch/irptc/>.

29 See Stockholm Convention, supra note 1, pmbl., Art. 1 (“Objective”).

30 See id., Arts. 3-6, & Annexes A-C; see also id., Art. 2 (“Definitions”).

31 See id., Arts. 7 (“Implementation Plans”), 12 (“Technical Assistance”), 13 (“Financial Resources and Mechanisms”), 14 (“Interim Financial Arrangements”), 15 (“Reporting”), 16 (“Effectiveness Evaluation”), 17 (“Noncompliance”), 18 (“Dispute Settlement”).

32 See id., Arts. 9 (“Information Exchange”), 10 (“Public Information, Awareness and Education”), 11 (“Research, Development and Monitoring”).

33 See id., Arts. 19 (“Conference of the Parties”), 20 (“ Secretariat”). Article 19 provides for the establishment of a subsidiary body, the POPs Review Committee (POPRC, pronounced POP-rock).

34 See id., Arts. 21 (“Amendments to the Convention”), 22 (“Adoption and Amendment of Annexes”).

35 See id., Art. 8, & Annexes D-F.

36 See id., Arts. 23-30.

37 Rio Declaration on Environment and Development, June 14, 1992, princ. 15, UN Doc. A/CONF.151/26 (1992), reprinted in 31 ILM 874, 879 (1992).

38 One recent debate regarding how to address trade issues arising in the context of an environmental agreement occurred in the negotiation of the Cartagena Protocol on Biosafety to the Convention on Biological Diversity, Jan. 29, 2000, at <http://www.biodiv.org/biosafety/>. See generally Hunter, Salzman, & Zaelke, supra note 6; Edith Brown Weiss, Stephen C. Mccaffrey, Daniel Barstow Magraw, Paul C. Szasz, & Robert E. Lutz, International Environmental Law and Poucy (1998) (reviewing trade and environment debates and listing related references).

39 The elements of a “savings clause” are identified in Article 30 of the Vienna Convention on the Law of Treaties, May 23, 1969, 1155 UNTS 331, 8 ILM 679 (1969), which sets forth rules regarding resolution of conflicts between successive agreements dealing with the same subject matter. See also sources cited supra note 38.

40 See, e.g., Stockholm Convention, supra note 1, Art. 3(2) (b), (c); infra pp. 701-02.

41 Sept. 19, 1987, 1522 UNTS 293, available at <http://www.unep.org/ozone/> [hereinafter Montreal Protocol].

42 See, e.g., Richard, Elliot Benedick, Ozone Diplomacy (1991)Google Scholar (describing Montreal Protocol scheme). The Montreal Protocol also addresses “consumption,” but under a definition (production plus imports minus exports) that was not transferred to the term “use” under POPs. See Montreal Protocol, supra note 41, Art. 1(6).

43 See LRTAP POPs Protocol, supra note 22 and accompanying text.

44 For example, the Stockholm Convention contains provisions on country-specific exemptions, funding, and technical assistance (among others, as discussed herein) that are not present in the LRTAP POPs Protocol. A key motivation for these provisions was to address issues relating, in particular, to the developing countries that participated in the negotiation of the Stockholm Convention—many of which did not participate in the negotiation of the regionally based LRTAP POPs Protocol.

45 This phrasing has legal significance. Some countries noted that they would achieve elimination through such means as banning sale and distribution in commerce or withdrawing registrations (for example, of pesticides). Although these methods did not necessarily constitute a direct “prohibition” on production and use, they would achieve the end result of elimination. The negotiating history records this point, see INC-5 Final Report, supra note 5, para. 44.

46 See infra pp. 700-01.

47 See INC-5 Final Report, supra note 5, App. VI (listing countries).

48 Stockholm Convention, supra note 1, Art. 3(5).

49 Id., Annex A, note 3, & Annex B, note 3.

50 The Montreal Protocol excludes covered substances that are “entirely used as feedstocks in the manufacture of other chemicals.” Montreal Protocol, supra note 41, Art. 1(5) (definition of “Production”).

51 For references to relevant statements by the World Health Organization, see INC-5 Final Report, supra note 5, para. 24 (noting that the WHO favored eventual elimination of DDT but recognized that some at present countries still needed DDT “to save lives from the scourge of malaria”).

52 See Weiss, Mccaffrey, Magraw, Szasz, & Lutz, supra note 38, at 1066-68.

53 These by-products include dioxins, furans, PCBs, and HCBs when formed unintentionally from anthropogenic sources. See Stockholm Convention, supra note 1, Annex C. The convention does not use the term “byproduct”; there were concerns regarding possible confusion with “products,” especially in certain languages.

54 Information on Dioxins (1999), at <http://irptc.unep.ch/pops/>.

55 See INC-5 Final Report, supra note 5, para. 42.

56 These issues were raised, for example, by various nongovernmental organizations that participated in the treaty process. The POPs Web site, <http://irptc.unep.ch/pops/>, provides links to the Web sites of many of the organizations, including IPEN (International POPs Elimination Network) and Greenpeace International, that raised these and similar issues.

57 In Article 5(f), “available” refers to techniques that are accessible to the operator and developed on a scale that allows implementation in the relevant sector under economically and technically viable conditions. Annex C identifies covered substances and source categories (Parts II and III, respectively). It also sets forth general guidance on BAT and “best environmental practices” (BEP), and identifies general considerations and specific types of measures that merit attention (or priority) as ways to prevent or reduce the release of listed substances.

58 See, e.g., Clare Breidenich, Daniel Magraw, Anne Rowley, & James, W. Rubin, The Kyoto Protocol to the United Nations Framework Convention on Climate Change, 92 AJIL 315 (1998)Google Scholar (describing the structure of the Kyoto Protocol).

59 LRTAP POPs Protocol, supra note 22.

60 Stockholm Convention, supra note 1, Art. 6(1) (d) (ii). A number of important related elements were noted during negotiations, including a Food and Agriculture Organization program to destroy obsolete pesticides in developing countries. The availability of funding and technical expertise for such activities in this and other areas will be a key factor in implementation. See infra pp. 706-07.

61 See infra pp. 706-07; Statement of Mohamed T. El-Ashry, May 22, 2001 (announcing, during Diplomatic Conference of May 21-24, 2001, agreement on funding of a pilot project for 12 countries to develop such plans) (on file with author).

62 The screening criteria in Annex D on persistence and bioaccumulation are expressed in numerical terms, but also allow for a determination that the evidence is otherwise sufficient for a positive finding. This approach provides both a scientific grounding and a measure of flexibility at the initial stage of the review process.

63 Stockholm Convention, supra note 1, Art. 8(7) (a).

64 See supra note 62 and accompanying text.

65 For a review of precaution and POPs, see Anne, Piatt McGinn, Why Poison Ourselves? A Precautionary Approach to Synthetic Chemicals (World Watch Paper No. 153, 2000)Google Scholar.

66 UN Convention to Combat Desertification in Countries Experiencing Serious Drought and/or Desertification, Particularly in Africa, June 19, 1994, Art. 31 (3), 33 ILM 1328 (1994) (entered into force Dec. 26, 1996), available at <http://www.unccd.ch>.

67 For a further discussion of the contours of this issue, see, for example, Benedick, supra note 42, at 153-62, 183-88 (discussing funding provisions of Montreal Protocol); Hunter, Salzman, & Zaelke, supra note 6, at 471-72 (discussing financing issues in treaties). For more information on the Global Environment Facility, see, for example, Weiss, Mccaffrey, Magraw, Szasz, & Lutz, supra note 38, at 1153-59.

68 See, e.g., Convention on Biological Diversity, June 5, 1992, Art. 39, 31 ILM 818 (1992), available at <http://www.biodiv.org>; UN Framework Convention on Climate Change, May 9, 1992, Art. 21(3), 1771 UNTS 108, 31 ILM 849 (1992), available at <http://www.unfccc.de>.

69 See, for example, the Convention on Biological Diversity, supra note 68, and the UN Framework Convention on Climate Change, supra note 68.

70 See Resolution on Capacity-Building and Capacity Assistance Network (May 21, 2001), UN Doc. UNEP/POPs/CONF/PM/3/Rev.l (2001), App. 1(B), available at <http://irptc.unep.ch/pops/>.

71 See, for example, the list of participants in the meetings in the INC reports, as well as list of documents available at each meeting, at <http://irptc.unep.ch/pops>.

72 See Lallas, Peter, The Role of Process and Participation in the Development of Effective International Environmental Agreements: A Study of the Global Treaty on Persistent Organic Pollutants (POPs), 19 UCLA J. Envtl. L. & Pol’y 83 (2001)Google Scholar.

73 See, e.g., Ileana, M. Porras, The Rio Declaration: A New Basis for International Cooperation, in Greening International Law 20 (Sands, Philippe ed., 1994)Google Scholar (reviewing some of the different North/South perspectives at the 1992 Rio Summit).