Dangerous Chemicals in International Perspective: The Developing United Nations Role

Martha Traylor

Martha Traylor is a Professor of Law at Seton Hall University Law School, and a Representative to the United Nations International Juridical Organization.

[15 ELR 10156]

The impact of toxic chemicals and waste on the environment and human life is of worldwide concern. The United Nations has been working for over a decade on development of a legal system to protect against toxic effects possible from the vast array of chemicals that now are manufactured and used in the world, and from the abandonment of toxic wastes. For several years, the U.N. quietly has been developing an international information and notification system. Every country in any stage of development is concerned to prevent another Bhopal. This recent tragedy has provided a dramatic push toward some kind of orderly preventive process to which all nations can agree. Because the United Nations is not a regulatory body, but must operate on the basis of consensus rules and guidelines, the legal system it is developing takes the form of voluntary contributions of information and mutual agreement to protective guidelines. There has been important progress, but in recent months, the United States has emerged as an obstacle.

The concern of the United Nations Environment Programme (UNEP) with the possible worldwide impact of chemicals and toxic wastes dates back to the Action Plan for the Human Environment of the United Nations Conference on the Human Environment, held at Stockholm from June 5-16, 1972 (1972 Stockholm Conference). In that plan, Recommendation 21 on international programs for integrated pest control and reduction of the harmful effects of agro-chemicals, and Recommendation 74 on an international registry of data on chemicals in the environment, form the structure for the developing legal system.¹ Two major programs have been undertaken, the creation of an international registry of dangerous chemicals to make available information concerning chemicals and wastes to all who need it, and a working group of experts who are developing guidelines concerning the movement of dangerous chemicals in the international trade.

The International Register

Establishing an international register of dangerous chemicals is an enormous undertaking. Of more than six million known chemicals, including pharmaceuticals and pesticides, there are now 60,000 to 70,000 in common use.² Between 500 to 1,000 new chemicals come onto the market each year. A stunning example of the problems is that over 13 billion U.S. dollars worth of pesticides, every one of which is by definition a toxic substance, are produced each year and deliberately released into the environment, where they may enter water systems, food chains, and eventually human bodies. We must also add to this the hundreds of millions of tons of hazardous industrial wastes that are produced every year.

There is no way to know accurately which chemicals are being produced around the world, in what quantities, or for what purposes. Very little information now exists regarding the biological effects of many chemicals or their behavior when released into the environment. Such information as is available does not move as rapidly in interstate commerce as do the chemicals. The need for an international system to collect the information that is available and distribute it to all interested nations was apparent as early as the late 1960s.

The need for an international register was recognized at the 1972 Stockholm Conference, with the recommendation to set up a centralized register of data on chemicals likely to enter the environment.³ In 1974, to implement this recommendation, the Governing Council of UNEP decided to establish both a chemnicals register and a global network for exchange of the information the register would contain.⁴ In 1975 UNEP convened two meetings of government experts to define the register's objectives and oversee its creation. The International Register of Potentially Toxic Chemicals (IRPTC) came into being to fill the need for a global clearing house for scientific, technical, legal and [15 ELR 10157] regulatory information for assessment and control of chemical hazards; it is independent of governmental and commercial interests, and can function irrespective of existing national legislation.⁵ The international experts declared four main objectives for the IRPTC: first, to collect and store data on chemicals being produced and used and to make this data readily available; second, to locate and draw attention to the major gaps in the available information on the properties of chemicals and encourage research to fill those gaps; third, to identify the potential hazards of using chemicals and make people aware of them; and fourth, to assemble information on existing policies for control and regulation of hazardous chemicals at national, regional, and global levels.

An International Network

The IRPTC links a wide variety of governmental and private entities in a global information-sharing network. In 1976 the central unit for the register was set up in Geneva, called the Programme Activity Centre (PAC). Overseeing the PAC's work is the Scientific Advisory Committee, a group of United Nations experts appointed by the UNEP Executive Director. Participants outside the central unit are called "network partners." IRPTC's network partners include national correspondents, national and international institutions, industries, and external contractors. United Nations bodies, international scientific organizations, national academies of science, specialized research institutions, and industrial research centers provide data and expertise on chemicals and their effects, cooperate in data collection and validation, and can also provide links with other institutions. The governments of nearly 100 member countries of the United Nations have each appointed at least one scientist or civil servant to assist IRPTC in information gathering and dissemination as National Correspondents. Regional workshops are held regularly for the National Correspondents in order to involve them, and the institutions they represent, in IRPTC activities, and to assist them in the establishment of national registers of chemical data. Chemical manufacturers and industries whose manufacturing processes create noxious chemicals as by-products, participate in an advisory group designated by the UNEP Executive Director.

Information on File

The information assembled at IRPTC is arranged in two major categories: First is information on chemicals. Second is information on regulation, including official inquiries into accidents and incidents involving chemicals.

* Sources of Information. Information on chemicals generally is provided by the national and international institutions, industries, universities, and private data banks that are IRPTC's contributing network partners.IRPTC also works closely with other units within UNEP, other United Nations bodies, regional and national organizations, scientific institutions and data banks. One of its most active partners is the International Programme on Chemical Safety (IPCS) initiated by the World Health Organization (WHO) and since April 1980 a joint program of UNEP, the International Labour Organization (ILO) and WHO. Libraries, academic institutions, and scientific journals also provide information.

A primary problem facing IRPTC is that of finding all the pertinent data on a chemical. The center has poor access to the wealth of unpublished data, known as "grey literature," on chemicals. Information may be buried in the files of chemical manufacturers, hidden in government offices, or published in conference proceedings or obscure journals that have a restricted distribution. It may simply be unreported. In spite of the fact that much data is closely-guarded, an amazing amount of information is in the IRPTC data banks. The system already has value to those who need it, and should continue to perform creditably.

The Center tries to maintain communications with chemical manufacturers. It develops policies to make communication beneficial to the manufacturers as well as the Center. Information on the regulatory status in various countries of many widely used chemicals is on file in Geneva and available on request.

Most of the information on national regulation of chemical hazards and responses to chemical spills in the environment comes from the 107 IRPTC National Correspondents appointed by 98 countries. Those correspondents provide information on new or planned legislation, regulations, and guidance to control chemicals, studies on chemicals of concern, and reports on official inquiries into accidents and spills involving chemicals. They also provide chemicals data, give advice on expertise available in their countries, and distribute information processed and published by the IRPTC. The IRPTC assists them in establishing national registers, in obtaining available information on chemicals, and in special training, where necessary, to provide a better understanding of IRPTC data presentation. In 1984 the UNEP Governing Council adopted a provisional notification scheme for banned and severely restricted chemicals, which also provides a steady flow of information into the IRPTC legal file.

[15 ELR 10158]

* Types of Data on File. A major goal of IRPTC is to identify the largest possible number of chemicals of international significance and collect as much data on their health effects as possible. The selection process was greatly facilitated by the existence of lists compiled previously by national or international authorities. Criteria used by the IRPTC for chemical selection are: the volume of production and major uses of a substance, its toxicity to humans and ecosystems, its persistence in the environment, and the rate at which it accumulates in living organisms.

The first Working List of Selected Chemical Substances, which identified 250 chemicals of international significance, was produced in 1979 and distributed to IRPTC's contributing network partners. It has been regularly revised and expanded to reflect contemporary concerns of countries as indicated by their requests for information. Today the Working List contains over 600 chemicals.⁶

The IRPTC tries to be selective in storing data. Vast information on chemicals is available, but much is repetitive or describes attributes of chemicals not directly relevant to their potential impact on human health and the environment. It has always been IRPTC's policy, where possible, to store only information that permits an assessment of the risks and hazards that a chemical substance poses to human health and the environment.

Information on all toxic effects are included, as are all data on the effects of exposure on humans. The lowest dose or concentration of a chemical at which an effect is observed is reported. If a "no effect level" has been determined, it is always included. Data that has been evaluated statistically has precedence over that which has not. Studies that involved a control group are selected over those that did not.The IRPTC prefers studies that report toxic effects on humans, rodents, and one non-rodent species. An attempt is made to report precisely the experimental conditions, such as the diet of the test animals, that may have affected the results.

Once IRPTC staff are certain that all the pertinent sources of information on a particular chemical have been identified, and the data has been selected according to instructions, the information is then stored in the computerized data bank that holds the IRPTC central file system. The data profiles are updated continuously as new information comes to light. Seventeen categories of chemical attributes have been identified and all information included in the profile is accompanied by cited references. Over 400 chemicals have been profiled, half of which are agricultural.

In 1978 the UNEP Governing Council requested that information on regulatory limitations placed on chemicals in the countries that produce them should be assembled and made generally available. Four years later the United Nations General Assembly asked for a list to be prepared of products and chemicals banned, withdrawn, or severely restricted by governments. One of the attributes contained in an IRPTC data profile is "Recommendations/Legal Mechanisms" so IRPTC had on hand much of the necessary raw legal data.

UNEP Export Guidelines

To carry out the second part of the recommendations made at Stockholm, the UNEP Governing Council began to develop guidelines for dealing with dangerous chemicals in international trade.By decision 85 (V) of May 25, 1977, the Governing Council urged governments "to take steps to ensure that potentially harmful chemicals, in whatever form or commodity, which are unacceptable for domestic purposes in the exporting country, are not permitted to be exported without the knowledge and consent of appropriate authorities in the importing country." In its session in May 1978, the Governing Council expanded its request.⁷

In May of 1982 the Governing Council authorized the Executive Director to convene a meeting of government experts to consider guidelines or principles on the exchange of information relating to trade in and use and handling of potentially harmful chemicals, in particular, pesticides.⁸ The Ad Hoc Working Group of Experts for the Exchange of Information on Potentially Harmful Chemicals (in Particular Pesticides) in International Trade was accordingly established, and its first session was held at Noordwijkerhout, Netherlands, in March 1984.⁹ The initial meeting was wide-ranging, with intense debate on the basic purpose, scope, and operation of the guidelines. There was general agreement that guidelines on the international exchange of chemicals were needed to ensure that countries receiving chemicals in trade understood the nature of the substances and had the infrastructure necessary to handle them. Another noncontroversial subject was the need for coordination of the application of the guidelinesby a competent international organization. But on other subjects there was heated discussion.

A fundamental issue was the nature of the guidelines; would they be advisory or regulatory? Some experts from developing countries were of the view that the guidelines should not be limited to information exchange; an element of trade regulation also was required. Nongovernmental organization (NGO) representatives expressed the view that an emphasis on mandatory import and export controls was incompatible with the concept of information exchange, could lead to unwarranted disruption of trade, and was unworkable in practice. Other NGO representatives argued that the guidelines should be broadly protective and should serve as the basis for the development of an international convention and national legislation to ensure their implementation. The Secretariat explained that UNEP is not a regulatory body and had no intention of seeking to regulate international trade. The objective of the draft guidelines was to establish a mandatory linkage between exports of chemicals and the provision of information thereon, not to institute a trade control mechanism. Acceptance of the guidelines by a nation would commit it to follow them, but would exert no control beyond the voluntary acquiescence implicit in membership in the family of UN nations.

[15 ELR 10159]

A second major issue was the types of chemicals to be covered. Some experts considered that pesticides, in light of their significance for agriculture in developing nations, should be a major focus, others argued that pesticides should be excluded, at least pending the outcome of Food and Agriculture Organization (FAO) work on a Code of Conduct concerning pesticide trade. As FAO representatives explained, the Code was being prepared in a complex institutional setting, which entailed cooperation with UNEP, WHO, the UN International Development Organization, the International Labor Organization, and others. The draft Code was to be submitted to member nations and relevant international organizations for comment in preparation for a November 1984 governmental consultation that could lead to formal adoption by the FAO. The issue of whether pharmaceuticals, medicinal products, and food additives should be included also was raised, but was tabled.

A third subject of dispute was the nature of the national actions concerning a chemical that should trigger notification or other obligations upon export. A number of the experts argued that the guidelines should address only chemicals that were banned or severely restricted in their countries of origin. Others countered that withdrawn and non-registered chemicals also should be included. There followed an intense debate as to the meaning of terms like "chemical product," "withdrawn for health reasons," "potentially harmful," and "banned or severely restricted," with no consensus reached. Variations in the definition of related terms in the different languages of the participants added to the problems. The Working Group asked for a report on national experience with the terms "banned or severely restricted," and "potentially harmful."

A fourth topic was whether the guidelines should be limited to chemicals in "trade," narrowly defined. Some argued that pesticides received by developing countries as aid should be considered trade; others that transfers of chemical manufacturing technology, which often was not accompanied with adequate information on the potential toxicity of the products to be produced, should be covered.

The meeting essentially was a scoping session. After much debate on various topics, the Working Group adjourned. It directed the Secretariat to incorporate its suggestions into a second draft and to consult with other UN bodies on a number of the issues.

The report of the first meeting on chemical export guidance was taken to the Governing Council of UNEP in May 1984, which requested the Working Group to continue its work, and "to take all appropriate steps to expedite the preparation of the guidelines and principles elaborated by the Group with a view to their early adoption by the Governing Council." The Working Group met again in Rome on January 28, 1985. At the second meeting the Director of IRPTC gave a progress report, in part describing beginning implementation of the Provisional Notification Scheme (PNS). The report indicated that 48 governments had designated national authorities for participation in the scheme. Participants discussed harmonizing language in the PNS with that being developed for the Working Group Guidelines.¹⁰

Another week and a half of debate on many of the issues raised in the first session followed. The delegates made some progress in resolving questions concerning definitions, principles, the role of the designated national authorities, imports and exports, classification, packaging and labeling, chemicals "not registered for use in the country of export" and "chemicals banned or severely restricted in country of export."

Near the end of the session, the delegate from India made an impassioned plea to include in the guidelines something that would prevent the tragedy at Bhopal from ever happening again.¹¹ The delegate argued for guidelines on the transfer of industrial know-how and training and offered a resolution that simply required disclosure of information about the risks of exported technologies between the exporting state and the importing state. This resolution received strong support from every delegation except the United States. The United States delegation explained that their instructions would allow them to agree to nothing that would put any kind of a burden on international trade, though they expressed great personal sympathy with the Indian resolution. They also opposed another resolution that would have created a study commission to look into the request of the Indian delegate, because their instructions from Washington barred agreement to any activity that would add to the operating costs of the United Nations. The U.S. delegation's further expressions of compassion and their regret at not being able to give stronger assurances to the Indian delegate did not, in the mind of this observer, dispel the impression that the official policy of the United States was to protect its foreign markets at all costs. This approach not only suggests callousness toward human health and the environment, which is inconsistent with our nation'sdomestic policies, but also undercuts the efforts of the Working Group, since the United States is a leader in chemicals export to less-developed nations. We will see whether this position persists at the third Working Group meeting, now tentatively planned for December 1985 in London.

1. Report of United Nations Conference on the Human Environment, Stockholm, 5-16 June, 1972 (UN Publication, Sales No. E. 73.II.A.14) Chap. II [hereinafter cited as Stockholm Report].

2. The statistics cited in this paragraph were obtained from the IRPTC.

3. Stockholm Report, supra note 1, at IIB.

4. See Official Records of the General Assembly, Thirtieth Session, Supplement No. 25, (A/10025), annex 1.

5. Official Records of the General Assembly, Thirty-first Session, Supplement No. 25, (A/31/25), annex 1; Thirty-third Session, Supplement 25, (A/33/25), annex 1.

6. IRPC Legal File 1983, IRPTC Data Profile Series, No. 4, UN Publication, Sales No. E. 83-0-1.

7. Official Records of the General Assembly, Thirty-second Session, Supplement No. 25 (A/32/25), annex 1.

8. Official Records of the General Assembly, Thirty-third Session, Supplement No. 25, (A/33/25) annex 1.

9. See Report of Economic and Social Council, General Assembly, Thirty-ninth Session, UN Document A/39/290; E/1984/120; June 18, 1984, at 13.

10. See Revised Draft Report, Ad Hoc Working Group of Experts for the Exchange of Information on Potentially Harmful Chemicals (in particular Pesticides) in International Trade, Second Session, Rome, January 28 — February 1, 1985.

11. This information is from personal observation and notation of the author who attended as a representative of the International Juridical Organization, a non-governmental organization accredited to the Economic and Social Council.