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Government Responsibility to Remediate Mercury-Contaminated Sites, a Philippine Perspective by Amiel Ian Valdez

21/09/2020 with [350 views] no comments

Government Responsibility to Remediate Mercury-Contaminated Sites,
a Philippine Perspective

by Amiel Ian Valdez

Image by Yogendra Singh from Pixabay

On 8 July 2020, the Philippines became the 123rd party to the Minamata Convention on Mercury (‘the Convention’), following its Government’s deposit of the instrument of ratification. For a country with a history of abandoned mine sites and sizable Artisanal and Small-scale Gold mining (ASGM) industry, this ratification raised several issues on the extent of the Philippine Government’s responsibility to remediate mercury-contaminated sites, particularly its approaches to providing medical and health care to and relocation sites of affected persons. This paper will analyse the legal bases of this responsibility—both from international and constitutional law perspectives—and suggest some areas of the law the may require amendment or policy guidance.

The Philippines presents an illustrative case in which these two legal systems—international law and constitutional law—interact in the context of mercury contamination. In June 2017, the Philippine health and environment authorities reported an outbreak in two villages in Puerto Princesa City of what appeared to be a Minamata disease. It is a disease that was discovered in Japan in the 1950s when there was a widespread methylmercury poisoning in the fishing town of Minamata—hence, the name of the Convention. The disease is considered serious and complex because those infected show neurological syndrome, including damage to cerebral cortex, visual constrictions, loss of control of bodily movements, difficulty in speech articulation, and other sensory disturbances (Harada, 1995). Pathological findings further show that poisoned women could give birth to children with mental retardation (Kondo, 2000). Many of those Puerto Princesa residents complained of experiencing these symptoms. Subsequent tests confirmed that these residents possessed high levels of mercury in their blood, hairs and/or urine. This result prompted the declaration of health crisis. Investigation further revealed that the primary cause of the illness was the consumption of fish and shellfish in the lake which used to be an old mine pit operated by a mining company from 1955 until its closure in 1976. Thus, one of the challenges faced by the Environment Department was that of pursuing liability of the company that ceased to operate and was dissolved decades ago. Meanwhile, the city government and health authorities grappled with time to finalise the relocation and medical treatment of the affected residents. The cost of chelation therapy alone, ie, the medical procedure to remove heavy metal from the body, will cost 100,000-300,000 PHP (2,025 – 6075 USD) for each person. This is a very significant sum for ordinary villagers whose livelihoods are mainly fishing. The Philippine Mines Bureau, in coordination with other government agencies and the private sector, had undertaken to lead the rehabilitation of this abandoned mercury mine site in Puerto Princesa. It is not clear, however, whether this is a permanent protocol to be followed in similar future cases. In March 2019, the Philippine Environment Department identified three more bodies of water and mining sites that are contaminated with mercury, and at least 14 more suspected contaminated sites.

Incorporating the Convention in the domestic legal framework

The above context on contaminated sites is one reason why this ratification is crucial for the Philippines. It does not have a specific law on contamination. It deals with the issues of pollution, wastes and contamination marginally through special environmental laws on, for example, clean water, toxic substances, or laws on specific industries, such as large-scale and small-scale mining. Although it has administrative guidelines (‘Guidelines’) on site remediation, in strict legal sense, it is not equivalent to law in the Philippine legal system. In the Philippines, laws are generally enacted by the two houses of Congress—Senate and House of Representatives. Moreover, the Guidelines was designed originally for remediation of Persistent Organic Pollutants (POPs) contaminated sites. It should be noted that POPs are covered by a different regime—the 2001 Stockholm Convention on POPs, of which Philippines is also a party to. Mercury is not among the list of POPs covered by Stockholm Convention.

In this regard, the Philippine ratification of the Minamata Convention fills in the gap in its domestic legal framework and regulation on mercury. It is important to note that the Philippines follows the public international law doctrine of incorporation.  Under Article II, section 2 of its Constitution, the Philippines ‘adopts the generally accepted principles of international law as part of the law of the land.’ In a long line of cases (eg, Secretary of Justice v Lantion), the Philippine Supreme Court has ruled that because ‘rules of international law [which include duly ratified treaties] form part of the law of the land’, then ‘no further legislative action is needed to make such rules applicable in the domestic sphere’. Accordingly, the Philippine Supreme Court explained that treaties which the Philippines is a party to ‘are given equal standing with… national legislative enactment.’ There is therefore a strong argument the Minamata Convention has the force and effect of a law within the domestic legal framework of the Philippines.

Gray areas in the provision on contaminated sites

The Convention has a specific provision (see Article 12) on contaminated sites. Article 12 (1) provides that ‘Each Party shall endeavour to develop strategies for identifying and assessing sites contaminated by mercury…’ Article 12 (2) states that ‘Any actions to reduce the risks posed by such sites shall be performed in an environmentally sound manner incorporating, where appropriate, an assessment of the risks to human health…’ Remediation comes in the final paragraph (Article 12 [4]) which states that ‘Parties are encouraged to cooperate in developing strategies and implementing activities for identifying, assessing, prioritizing, managing and, as appropriate, remediating contaminated sites.’ As a party to the Convention, the Philippines is bound to comply with these obligations by virtue of pacta sunt servanda under the Law of Treaties.

Nevertheless, as can be gleaned from the text of Article 12, these obligations are couched in a soft manner, particularly in remediation where parties are only encouraged to develop strategies and implement activities. In effect, it may be argued that the remediation of contaminated sites depends on the strength or weakness of a state’s domestic framework and how a state approaches contaminated sites. Moreover, in reference to the Philippine experience in Puerto Princesa on abandoned mine sites, Article 12 does not provide an explicit direction on the extent of the responsibility of the state’s government to undertake remediation and/or provide medical treatment to individuals infected with Minamata disease. However, in the 2019 Conference of Parties (COP) to this Convention, parties adopted a Guidance on the management of contaminated sites (‘the Guidance’), which mentioned that contaminated sites ‘could include both active and abandoned sites’ (para 19). When it comes to financing of management and remediation of contaminated sites, the Guidance states that it ‘should reflect the polluter pays principle [PPP] whenever possible’ (para 94). Here, PPP appears to be used by COP not simply as a means of internalising environmental costs—as it is traditionally defined—but more on to estalish liability for ‘expenditure for assessment, management, remediation, waste treatment and disposal’ (ibid). Where the polluter no longer exists or has insufficient fund to cover assessment and remediation, the Guidance recommends the adoption of ‘orphan site’ system similar to some European countries, where landowners—on account of their relationship to the land—can be held responsible for remediation (para 95). The Guidance further states that ‘In some cases, different levels of government may be responsible for the financing framework for contaminated sites’ (para 94). Although Article 12(2)(c) of the Convention states that the Guidance should include approaches on human health assessment, the current Guidance is limited to the technical process of assessment and remediation without directive on medical treatment or health care and relocation of those exposed to mercury—both issues arose in the Puerto Princesa incident—whether the actor responsible for remediation is the polluter, landowner-beneficiary or Government. Thus, this is an issue which may require further guidance from future COP—for example, a requirement to include these aspects in the national strategies under Article 12 of the Convention.

The above issues are not distinctive to historical contamination. They are among the issues that beset ASGM, the main industry that the Convention seeks to regulate (see Article 7). Most artisanal miners use liquid mercury to extract gold from the ore, which makes them and their communities highly susceptible to Minamata disease. In the 2018 Global Mercury Assessment, the United Nations (UN) Environment Programme found that ASGM remains the predominant source of mercury emissions and accounts for 38% of the total global emissions. In terms of pattern, majority or 49% of the 2015 emissions occurred in East Asia and Southeast Asia (see eg, Indonesia’s context). In a 2017 study, the UN Industrial Development Organisation reported that the Philippines ranked 19th among the world’s largest gold producers. This study also states that 70-80% of the Philippines’ total gold production come from ASGM, thus making this country ‘one of the world’s largest ASM gold producers’.

Unlike Article 12, Article 7(3)(a) of the Convention provides a hard obligation—a ‘shall’ provision—on each state party to develop and implement a national action plan in accordance with Annex C of the Convention. Annex C(1)(h)-(i) require that the national action plan contains public health strategy on the exposure of ASG miners and their communities, particularly children and women of child-bearing age. While there appears to be a margin of discretion given to state parties on how they will develop their public health strategies, at the minimum it may be argued that a state must comply with the standards set forth in both international and constitutional laws in recognising every person’s right to health. The Philippines, being a party to the International Covenant on Economic, Social and Cultural Rights (ICESCR), is obliged to take steps ‘necessary for…the prevention, treatment and control of… occupational and other diseases’ to achieve full realisation of its citizen’s right to health (Article 12[2][c], ICESCR). In its General Comment No. 14, the Committee on Economic, Social and Cultural Rights explained that states have an ‘obligation to fulfil’ which ‘requires states to adopt appropriate legislative, administrative, budgetary,…and other measures towards the full realization of the right to health’ (para 33). In fulfilling this obligation, a state has to consider the different elements of right to health, which include economic accessibility, ie, ‘health facilities, goods and services must be affordable for all’ (para 12[b]). These are also reflected in the Philippine Constitution (‘Constitution’). Article II, Section 15 of the Constitution states that ‘The State shall protect and promote the right to health of the people…’ In relation to this, Article XIII, Section 11 provides that the state shall develop an approach that makes the cost of health goods and services affordable to all people. The availability and affordabality of health care are important factors in the overall approach to remediation of contaminated sites—whether abandoned or as a result of ASGM—because most of the affected persons are from the underprivileged or poor households.

Legal and policy solutions

To conform to the requirements of the Convention on the aspect of contamination, the Philippines may need to revisit its administrative Guidelines on site remediation to ensure its applicability on mercury-contaminated sites. This should include a clear policy or strategy on the provision of medical and health care and relocation sites especially if the government is undertaking the remediation. More importantly, a timely and proper medical treatment of those with Minamata disease will require sufficient and stable funding. One option to consider is the amendment of the 1991 People’s Small-Scale Mining Act to include, as one of the purposes of mining protection fund, health care schemes or subsidies for those infected with Minamata disease and also relocation expenses. Currently, the law only limits the purposes of this fund primarily for information dissemination and training of miners, and establishment of rescue and recovery team (Section 20). This fund accounts for 15% of the Government’s share in the revenue of small-scale mining programme. With the inclusion of health and relocation components among the purposes of this fund, the Government will have an assured source to appropriate budget for medical and relocation expenses of affected persons.