Something highly unusual occurred last week, on November 11. The U.S. became the first state to join the Minamata Mercury Convention, a comprehensive agreement addressing the trade, disposal, mining, and air emissions of mercury. Mercury is, of course, a very serious neurotoxin. Mercury poisoning came to worldwide attention in the 1950s and 60s with Minamata disease in Japan.
The act of the US, deposition of an instrument of acceptance of the Convention by Assistant Secretary for Oceans, Environment and International Scientific Affairs Kerri-Ann Jones, is remarkable for at least three reasons: First, the US is the first state to become a party. (Check out the list of signatures/ratifications, which has a map showing only the United States as a party, as of today, November 15). Second, it is also remarkable because it is the first Multilateral Environmental Agreement in many years that the US has actually joined as a party, rather than only signing. There are many MEAs where US status is in limbo — signed by the US, but not ratified. Finally, the instrument deposited by the US was not a ratification, but rather an acceptance. In other words, the State Department chose to forego Senate advice and consent on this agreement, which has been the traditional pathway for the US joining a treaty regime, and joined the treaty based on existing legal authority and in the nature of an executive agreement.
According to the State Department’s press release: “The United States has already taken significant steps to reduce the amount of mercury we generate and release to the environment, and can implement Convention obligations under existing legislative and regulatory authority. The Minamata Convention complements domestic measures by addressing the transnational nature of the problem.”
This is important recognition of significant authority the federal government and the President have already to address international problems like mercury pollution and it is not necessary to go to Congress for additional implementing authority. The most important practical benefit of this approach, of course, is that it skips Congress, the most significant bottle-neck for more active engagement by the US on a number of important environmental treaties.