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Governing the Tipping Point: Global Chemicals and Waste Law at the Dawn of 2020

 

Dr. Sabaa Ahmad Khan

Senior Researcher, Center for Climate Change, Energy and Environmental Law, University of Eastern Finland

 

Chemicals are the fundamental building blocks of the contemporary world, from a molecular to global level. Emergence of a chemicals market was one of the massive outgrowths, or aftermaths, of World War II. In the 1950s plastics began to enter the consumer market, driven by expansive marketing campaigns. Companies like Monsanto and Penn Salt developed full-page ads in magazines such as Time and Life, swaying consumers into the positive aspects of the chemicals industry. From doing laundry, to feeding children, to cleaning bathrooms and providing animal feed, the ease and comfort that the chemicals industry would bring to households was portrayed as boundless, futuristic. 

1947 Penn Salt Ad in Time Magazine, 1956 Monsanto Ad in Life Magazine

Today, the ubiquity of electronic waste pollution, abundant plastic debris in oceans, and chemically-polluted air in almost all regions of the world signal to us that our current global systems of production and consumption are rapidly deteriorating the ecosystem and human health; we are deep in the language of tipping points. As production systems have globalized, the transboundary flows of hazardous substances, materials and wastes that fuel our agricultural, pharmaceutical and manufacturing industries have become more difficult to map. In fact, many multinational firms producing everyday commodities are unable to trace their supply chains through to the core. Multiple levels of subcontracting cutting across several continents combined with legal protections over trade secrets make it difficult to know with certainty what exactly the commodities in expansive global consumption are made of, where they originated and what hazards they contain. International scientific bodies have often reminded us of how much we do not know about the chemicals we have come to rely on in every-day human life. From packaging in school and commercial cafeterias in every part of the world, to the seeds we feed livestock, humanity is entwined with toxic substances in ways we have yet to understand. Scientifically, at the very least, we know from observing the dispersion and transboundary flow of chemicals in physical space, that many of our chemical uses are detrimental to humans and the environment. 

 

It has become apparent that we are drifting farther away from fulfilling the global goal for chemicals and waste management established under Agenda 21 and crystallized in the Johannesburg Implementation Plan, that is, "to achieve, by 2020, that chemicals are used and produced in ways that lead to the minimization of significant adverse effects on human health and the environment."  At the global level, a series of international chemicals and waste treaties have been adopted to protect human health and the environment from the global circulation of toxics, yet their coverage is narrow in scope and their controls are sporadic, limited to specific points of the chemical lifecycle. To fulfill the governance gaps of the international chemicals regime, the Strategic Approach to International Chemicals Management was adopted in 2006, operationalizing the 2020 goal through a voluntary and multistakeholder instrument, consisting of a series of overarching policy objectives and a Global Action Plan for implementation. Even with this progressive development of global law on chemicals and waste, chemical pollution remains a relentlessly rising planetary phenomenon that has proven impossible to address cogently under the existing cluster of international environmental agreements devised to regulate global flows of hazardous chemicals and wastes. In the complex system of global value chains and production networks, the attribution of responsibility and accountability for the toxic effects of chemicals and wastes on human and ecosystem health remain loosely defined and often impossible to allocate. 

 

On the eve of the next Conference of the Parties of the chemicals and waste treaties, and in the full thrust of negotiations towards a post-2020 global cooperative framework for chemicals and waste management, our imminent failure to achieve the longstanding 2020 goal provides anopportunity to revisit our collective vision and expectations of global chemicals and waste governance. More than ever, there is a pressing need to interrogate the further development of our body of international law on chemicals and waste from a Weeramantrian perspective, that is to say, with a particular emphasis on its ‘wisdom of the past’ and ‘attunement to the future.’ 

 

Can the global momentum over climate change invigorate us towards bolder commitments in eliminating the toxic, ubiquitous effects of chemicals and wastes, or towards a vigorous re-imagining of the philosophy of technology and paradigm of progress that underlies this field of international law? A first step in this regard may be to think about how we perceive the issue. While 'chemicals and wastes' have generally been considered an area for scientific specialists and a matter of technocratic management, in actuality they subsume almost all material goods that contemporary society has come to rely on. The toxic chemicals we face do not stand alone, they are embodied in products and in the global flow of these products as they travel through the phases of manufacturing, use, international trade, disposal and recycling. The legal visibility that is required to effectively protect human health and the environment from the toxic hazards  of chemicals and wastes must cut across entire global chains of production, consumption and reproduction. Moreover, the assignation of responsibility and accountability for how we produce, consume and dispose of commodities needs to spread across all stakeholders and across all continents. 

 

As governments, international organizations, industry actors and civil society groups convene over the next months to renew a collective vision for chemicals and wastes, the widespread human rights violations and rampant environmental destruction caused by chemical and waste pollution across the globe demand that they seriously reflect upon the international approach we have taken thus far, and consider further whether the toxic tipping points we face require a new lens, one that demands profound actions for transparency, responsibility and accountability across global commodity chains, and that speaks to government and society inclusively. The success of our efforts towards soundly managing chemicals and waste beyond 2020 will depend largely on how we raise global awareness of the human rights and ecological impacts of chemicals-based value chains, and of the transboundary causes and consequences of chemical pollution. Above all, there is a need to incite governments and society to care about chemicals from the molecular to global level, and to demand that responsibility and accountability for toxic substances be assumed across all globalized production systems and recycling chains, across all borders.A common-sense step that can be taken immediately is for countries that have banned the use of certain chemicals in their own jurisdictions to concomitantly prohibit within their jurisdictions the production of those chemicals for export. 

 

Given the continuous worsening of chemical pollution worldwide, a deeper interrogation of the global legal regime for chemicals and waste management is urgently required. In particular, understanding international chemicals and waste law from an environmental justice perspective, meaning, from the point of view of bridging ideas of law together with an understanding of the latter’s concrete impacts on space, equity and environmental and human health, is critical in order to bring an end to the historical, persistent, and wildly disproportionate impact of toxic chemical exposures experienced by the world’s most vulnerable workers, marginalized populations and fragile ecosystems.

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