Protocol to the 1979 Convention on Long-range Transboundary Air Pollution on Heavy Metals ^[*]

"Convention" means the Convention on Long-range Transboundary Air Pollution, adopted in Geneva on 13 November 1979;

"EMEP" means the Cooperative Programme for Monitoring and Evaluation of Long-range Transmission of Air Pollutants in Europe;

"Executive Body" means the Executive Body for the Convention constituted under article 10, paragraph 1, of the Convention;

"Commission" means the United Nations Economic Commission for Europe;

"Parties" means, unless the context otherwise requires, the Parties to the present Protocol;

"Geographical scope of EMEP" means the area defined in article 1, paragraph 4, of the Protocol to the 1979 Convention on Long-range Transboundary Air Pollution on Long-term Financing of the Cooperative Programme for Monitoring and Evaluation of the Long-range Transmission of Air Pollutants in Europe (EMEP), adopted in Geneva on 28 September 1984;

"Heavy metals" means those metals or, in some cases, metalloids which are stable and have a density greater than 4.5 g/cm3 and their compounds;

"Emission" means a release from a point or diffuse source into the atmosphere;

"Stationary source" means any fixed building, structure, facility, installation, or equipment that emits or may emit a heavy metal listed in annex I directly or indirectly into the atmosphere;

"New stationary source" means any stationary source of which the construction or substantial modification is commenced after the expiry of two years from the date of entry into force for a Party of the present Protocol. A Party may decide not to treat as a new stationary source any stationary source for which approval has already been given by the appropriate competent national authority at the time of entry into force of the Protocol for that Party and provided that the construction or substantial modification is commenced within five years of that date. It shall be a matter for the competent national authorities to decide whether a modification is substantial or not, taking into account such factors as the environmental benefits of the modification;

"Major stationary source category" means any stationary source category that is listed in annex II and that contributes at least one per cent to a Party's total emissions from stationary sources of a heavy metal listed in annex I for the reference year specified in accordance with annex I.

The terms “this Protocol”, “the Protocol” and “the present Protocol” mean the 1998 Protocol on Heavy Metals, as amended from time to time.

Each Party shall reduce its total annual emissions into the atmosphere of each of the heavy metals listed in annex I from the level of the emission in the reference year set in accordance with that annex by taking effective measures, appropriate to its particular circumstances.

Subject to paragraphs 2 bis and 2 ter, each Party shall, no later than the timescales specified in annex IV, apply:

A Party that was already a Party to the present Protocol prior to the entry into force of an amendment that introduces new source categories may apply the limit values applicable to an “existing stationary source” to any source in such a new category the construction or substantial modification of which is commenced before the expiry of two years from the date of entry into force of that amendment for that Party, unless and until that source later undergoes substantial modification.

A Party that was already a Party to the present Protocol prior to the entry into force of an amendment that introduces new limit values applicable to a “new stationary source” may continue to apply the previously applicable limit values to any source the construction or substantial modification of which is commenced before the expiry of two years from the date of entry into force of that amendment for that Party, unless and until that source later undergoes substantial modification.

Each Party shall apply product control measures in accordance with the conditions and timescales specified in annex VI.

Each Party should consider applying additional product management measures, taking into consideration annex VII.

Each Party shall develop and maintain emission inventories for the heavy metals listed in annex I. Parties within the geographic scope of EMEP shall use the methodologies specified in guidelines prepared by the Steering Body of EMEP and adopted by the Parties at a session of the Executive Body. Parties in areas outside the geographic scope of EMEP shall use as guidance the methodologies developed through the workplan of the Executive Body.

A Party that, after applying paragraphs 2 and 3 above, cannot achieve the requirements of paragraph 1 above for a heavy metal listed in annex I, shall be exempted from its obligations in paragraph 1 above for that heavy metal.

Any Party whose total land area is greater than 6,000,000 km2 shall be exempted from its obligations in paragraphs 2 (b), (c), and (d) above, if it can demonstrate that, no later than eight years after the date of entry into force of the present Protocol, it will have reduced its total annual emissions of each of the heavy metals listed in annex I from the source categories specified in annex II by at least 50 per cent from the level of emissions from these categories in the reference year specified in accordance with annex I. A Party that intends to act in accordance with this paragraph shall so specify upon signature of, or accession to, the present Protocol.

Each Party should actively participate in programmes under the Convention on the effects of air pollution on human health and the environment and programmes on atmospheric monitoring and modelling.

Notwithstanding article 3, paragraphs 2 (c) and 2 (d), a Party to the Convention that becomes a Party to the present Protocol between 1 January 2014 and 31 December 2019 may apply flexible transitional arrangements for the implementation of best available techniques and limit values to existing stationary sources in specific stationary source categories under the conditions specified in this article.

Any Party electing to apply the flexible transitional arrangements under this article shall indicate in its instrument of ratification, acceptance, approval or accession to the present Protocol the following:

A Party shall, as a minimum, apply best available techniques for existing stationary sources in categories 1, 2, 5 and 7 of annex II no later than eight years after the entry into force of the present Protocol for the Party, or 31 December 2022, whichever is sooner, except as provided in paragraph 5.

In no case may a Party’s application of best available techniques or limit values for any existing stationary sources be postponed past 31 December 2030.

With respect to any source or sources indicated pursuant to paragraph 2 (b), a Party may decide, no later than eight years after entry into force of the present Protocol for the Party, or 31 December 2022, whichever is sooner, that such source or sources will be closed down. A list of such sources shall be provided as part of the Party’s next report pursuant to paragraph 6. Requirements for application of best available techniques and limit values will not apply to any such source or sources, provided the source or sources are closed down no later than 31 December 2030. For any such source or sources not closed down as of that date, a Party must thereafter apply the best available techniques and limit values applicable to new sources in the applicable source category.

A Party electing to apply the flexible transitional arrangements under this article shall provide the Executive Secretary of the Commission with triennial reports of its progress towards implementation of best available techniques and limit values to the stationary sources in the stationary source categories identified pursuant to this article. The Executive Secretary of the Commission will make such triennial reports available to the Executive Body.

The Parties shall, in a manner consistent with their laws, regulations and practices, facilitate the exchange of technologies and techniques designed to reduce emissions of heavy metals, including but not limited to exchanges that encourage the development of product management measures and the application of best available techniques, in particular by promoting:

In promoting the activities specified in paragraph 1 above, the Parties shall create favourable conditions by facilitating contacts and cooperation among appropriate organizations and individuals in the private and public sectors that are capable of providing technology, design and engineering services, equipment or finance.

Each Party shall develop, without undue delay, strategies, policies and programmes to discharge its obligations under the present Protocol.

A Party may, in addition:

The Parties may take more stringent measures than those required by the present Protocol.

Emissions, long-range transport and deposition levels and their modelling, existing levels in the biotic and abiotic environment, the formulation of procedures for harmonizing relevant methodologies;

Pollutant pathways and inventories in representative ecosystems;

Relevant effects on human health and the environment, including quantification of those effects;

Best available techniques and practices and emission control techniques currently employed by the Parties or under development;

Collection, recycling and, if necessary, disposal of products or wastes containing one or more heavy metals;

Methodologies permitting consideration of socio-economic factors in the evaluation of alternative control strategies;

An effects-based approach which integrates appropriate information, including information obtained under subparagraphs (a) to (f) above, on measured or modelled environmental levels, pathways, and effects on human health and the environment, for the purpose of formulating future optimized control strategies which also take into account economic and technological factors;

Alternatives to the use of heavy metals in products listed in annexes VI and VII;

Gathering information on levels of heavy metals in certain products, on the potential for emissions of those metals to occur during the manufacture, processing, distribution in commerce, use, and disposal of the product, and on techniques to reduce such emissions.

Subject to its laws governing the confidentiality of commercial information:

The information to be reported in accordance with paragraph 1 (a) above shall be in conformity with a decision regarding format and content to be adopted by the Parties at a session of the Executive Body. The terms of this decision shall be reviewed as necessary to identify any additional elements regarding the format or the content of the information that is to be included in the reports.

Upon the request of and in accordance with timescales decided by the Executive Body, EMEP and other subsidiary bodies shall provide relevant information on the long-range transport and deposition of heavy metals.

The Parties shall, at sessions of the Executive Body, pursuant to article 10, paragraph 2 (a), of the Convention, review the information supplied by the Parties, EMEP and other subsidiary bodies and the reports of the Implementation Committee referred to in article 9 of the present Protocol.

The Parties shall, at sessions of the Executive Body, keep under review the progress made towards meeting the obligations set out in the present Protocol.

The Parties shall, at sessions of the Executive Body, review the sufficiency and effectiveness of the obligations set out in the present Protocol.

The Parties shall consider, based on the conclusion of the reviews referred to in paragraph 3 above and as soon as practicable after completion of the review, developing a work plan on further steps.

In the event of a dispute between any two or more Parties concerning the interpretation or application of the present Protocol, the Parties concerned shall seek a settlement of the dispute through negotiation or any other peaceful means of their own choice. The parties to the dispute shall inform the Executive Body of their dispute.

When ratifying, accepting, approving or acceding to the present Protocol, or at any time thereafter, a Party which is not a regional economic integration organization may declare in a written instrument submitted to the Depositary that, in respect of any dispute concerning the interpretation or application of the Protocol, it recognizes one or both of the following means of dispute settlement as compulsory ipso facto and without special agreement, in relation to any Party accepting the same obligation:

A Party which is a regional economic integration organization may make a declaration with like effect in relation to arbitration in accordance with the procedures referred to in subparagraph (b) above.

A declaration made under paragraph 2 above shall remain in force until it expires in accordance with its terms or until three months after written notice of its revocation has been deposited with the Depositary.

A new declaration, a notice of revocation or the expiry of a declaration shall not in any way affect proceedings pending before the International Court of Justice or the arbitral tribunal, unless the parties to the dispute agree otherwise.

Except in a case where the parties to a dispute have accepted the same means of dispute settlement under paragraph 2, if after twelve months following notification by one Party to another that a dispute exists between them, the Parties concerned have not been able to settle their dispute through the means mentioned in paragraph 1 above, the dispute shall be submitted, at the request of any of the parties to the dispute, to conciliation.

For the purpose of paragraph 5, a conciliation commission shall be created. The commission shall be composed of equal numbers of members appointed by each Party concerned or, where the Parties in conciliation share the same interest, by the group sharing that interest, and a chairman chosen jointly by the members so appointed. The commission shall render a recommendatory award, which the Parties shall consider in good faith.

Any Party may propose amendments to the present Protocol.

Proposed amendments shall be submitted in writing to the Executive Secretary of the Commission, who shall communicate them to all Parties. The Parties meeting within the Executive Body shall discuss the proposed amendments at its next session, provided that the proposals have been circulated by the Executive Secretary to the Parties at least ninety days in advance.

Amendments to the present Protocol other than to annexes III and VII shall be adopted by consensus of the Parties present at a session of the Executive Body, and shall enter into force for the Parties which have accepted them on the ninetieth day after the date on which two thirds of those that were Parties at the time of their adoption have deposited with the Depositary their instruments of acceptance thereof. Amendments shall enter into force for any other Party on the ninetieth day after the date on which that Party has deposited its instrument of acceptance thereof.

Amendments to annexes III and VII shall be adopted by consensus of the Parties present at a session of the Executive Body. On the expiry of 180 days from the date of its communication to all Parties by the Executive Secretary of the Commission, an amendment to any such annex shall become effective for those Parties which have not submitted to the Depositary a notification in accordance with the provisions of paragraph 5 below, provided that at least sixteen Parties have not submitted such a notification.

Any Party that is unable to approve an amendment to annex III or VII shall so notify the Depositary in writing within 180 days from the date of the communication of its adoption. The Depositary shall without delay notify all Parties of any such notification received. A Party may at any time substitute an acceptance for its previous notification and, upon deposit of an instrument of acceptance with the Depositary, the amendment to such an annex shall become effective for that Party.

For those Parties having accepted it, the procedure set out in paragraph 5 ter supersedes the procedure set out in paragraph 3 in respect of amendments to annexes II, IV, V and VI.

Amendments to annexes II, IV, V and VI shall be adopted by consensus of the Parties present at a session of the Executive Body. On the expiry of one year from the date of its communication to all Parties by the Executive Secretary of the Commission, an amendment to any such annex shall become effective for those Parties which have not submitted to the Depositary a notification in accordance with the provisions of subparagraph (a):

In the case of a proposal to amend annex I, VI or VII by adding a heavy metal, a product control measure or a product or product group to the present Protocol:

Any decision to amend Executive Body decision 1998/1 shall be taken by consensus of the Parties meeting within the Executive Body and shall take effect sixty days after the date of adoption.

The present Protocol shall be open for signature at Aarhus (Denmark) from 24 to 25 June 1998, then at United Nations Headquarters in New York until 21 December 1998 by States members of the Commission as well as States having consultative status with the Commission pursuant to paragraph 8 of Economic and Social Council resolution 36 (IV) of 28 March 1947, and by regional economic integration organizations, constituted by sovereign States members of the Commission, which have competence in respect of the negotiation, conclusion and application of international agreements in matters covered by the Protocol, provided that the States and organizations concerned are Parties to the Convention.

In matters within their competence, such regional economic integration organizations shall, on their own behalf, exercise the rights and fulfil the responsibilities which the present Protocol attributes to their member States. In such cases, the member States of these organizations shall not be entitled to exercise such rights individually.

The present Protocol shall be subject to ratification, acceptance or approval by Signatories.

The present Protocol shall be open for accession as from 21 December 1998 by the States and organizations that meet the requirements of article 14, paragraph 1.

A State or regional economic integration organization shall declare in its instrument of ratification, acceptance, approval or accession if it does not intend to be bound by the procedures set out in article 13, paragraph 5 ter, as regards the amendment of annexes II, IV, V and VI.

The present Protocol shall enter into force on the ninetieth day following the date on which the sixteenth instrument of ratification, acceptance, approval or accession has been deposited with the Depositary.

For each State and organization referred to in article 14, paragraph 1, which ratifies, accepts or approves the present Protocol or accedes thereto after the deposit of the sixteenth instrument of ratification, acceptance, approval or accession, the Protocol shall enter into force on the ninetieth day following the date of deposit by such Party of its instrument of ratification, acceptance, approval or accession.