Environment law assignment 002

International Environmental Law

Topic:

Examine the key environmental principles included in

the MEAs regulating pesticides and persistent

organic pollutants. How effective are these

principles? What are the main strengths and

weaknesses of regulating PICs and POPs?

TABLE OF CONTENTS

1 Introduction 3

1


2 Analysis 4

3 Recommendations 13

4 Conclusion 15

5 Bibliography 15

Introduction

2


The post-World War II era has seen unprecedented development in

synthetic chemicals in private and military applications. This has

been translated into the creation of a myriad of essential and

convenience products in plastics, high tech composites,

pharmaceuticals and agricultural compounds all beneficial to humans.

It has led to a sophisticated lifestyle beyond the imagination of past

Emperors. It is speculated that there are over 18 million synthetic

chemical substances known to science and at least 75,000 of these are

used in Pesticides, Plastics and other products1. The negative impact

from all of this on the human being and the environment has also been

unimaginable. More than 250 synthetic chemicals are now found in our

bodies regardless of where we live2.

Pesticide is an umbrella term that covers a variety of chemical

compounds including fungicides, insecticides, herbicides,

rodenticides, nematicides, molluscicides, plant growth regulators and

others. Among these, organochlorine (OC) insecticides (e.g. DDT,

endrin, dieldirin, etc.) used successfully in controlling a number of

diseases, such as malaria and typhus, were banned or restricted after 1 Lester Brown, M Renner, L Starke, B Halweil; Vital Signs 2000: The Environmental Trends That Are Shaping Our Future; World Watch Institute, State of the World 80 (2000).2 Colborn, Theo; Dianne Dumanoski; and John Peterson Myers. Our Stolen Future: Are WeThreatening Our Fertility, Intelligence, and Survival? A Scientific Detective Story.New York : Dutton, 1996. 306 p

3


the 1960s in most of the technologically advanced countries. The

introduction of other synthetic insecticides – organophosphate (OP)

insecticides in the 1960s, carbamates in 1970s and pyrethroids in1980s

and the introduction of herbicides and fungicides in the 1970s–1980s

contributed greatly to pest control and agricultural output3.

Pesticides are toxic by design and the prolific use of pesticides and

other chemicals have led to dire environmental consequences.

A report from World Health Organization (WHO) indicated that over

200,000 people are killed due to the toxicity of these dangerous

chemicals every year3. The casualty figure in fact do not confirm the

real picture of poisoning caused by the frequent use of pesticides but

approximately over three million poisoning cases have been reported

annually4.

Analysis

There is a nexus between pesticides and pollution. Some of the

Pesticides are inherently residual and often referred to as persistent

3 For WHO study of negative impact of selected POPs: http://www.who.int/ipcs/assessment/en/pcs_95_39_2004_05_13.pdf 4 M. Ahmed Azmi and S.N.H. Naqvi. Pesticide Pollution, Resistance and Health Hazards.Baqai Medical University, Pakistan. http://cdn.intechopen.com/pdfs/13220/InTech-Pesticide_pollution_resistance_and_health_hazards.pdf

4


organic pollutants (POP), as they remain within the environment and

can be very harmful for a very long period. There are over 75,000

different chemicals used in pesticides, pharmaceuticals, plastics and

other products. Additionally, each year thousands of new synthetic

chemicals are added to this stock5. This far exceeds the testing

capacity of even the most developed countries and results in limited

knowledge of the impact on human health and the environment. The other

related issue is that while some of these pesticides and associated

chemicals have been laboratory tested individually for toxicity and

carcinogenic properties; very little is known of their potential to

mimic hormones (endocrine disruption)5 or weaken the immune system

( immunosuppression), or of their effects over long periods of low

exposure (agricultural usage), and their synergistic impact when

combined with other chemical compounds.

The fact that these chemicals are a significant part of international

trade and used on a daily basis globally expands the dimension of

chemical contamination and issues of environmental and public health.

Some chemicals maybe prohibited in one country and used and sold in

5 For more on endocrine disruption see Colborn, Theo; Dianne Dumanoski; and John Peterson Myers. Our Stolen Future: Are We Threatening Our Fertility, Intelligence, and Survival? A Scientific Detective Story. New York : Dutton, 1996.

5


another, for example, the pesticide Aldrin (DDT) is banned in the USA

and still sold by US and East European countries under different brand

names in developing countries such as Trinidad and Tobago, where it is

sold as Aldrex6. Trans-boundary chemical contamination via inadvertent

spills or deliberate dumping and through biological transfer from the

food chain as in the case of mercury, presents a global threat. It is

because of this potential for harm that a system of Prior Informed

Consent (PIC) was established to provide an early warning to

destination countries.

Scientific development has improved our capacity to detect minute

quantities of chemicals (as in parts per trillion) and therefore allow

us to make judgements as to what is food safe or tolerable to human

health. In the 1940's and 50's the regulatory approach was on chemical

toxicity of short term exposures.

In the 1960's and 70's the focus turned to longer term exposures of

smaller doses which caused cancer or birth defects. The neurological

and other effects of DDT spawned Rachel Carson's extremely influential

book " The Silent Spring" in 1963 and led to a ban on US domestic usage.

6 From actual field research by author at Maturita Agricultural Store, Arima on October 5th 2013.

6


In the 1980's and onwards there has been greater awareness on impact

of chemical contaminant not only on various parts of the human

anatomy, but on the external effects on the ecology generally. These

studies have collated evidence that chemicals contaminants may mimic

hormones and disrupt endocrine systems in both wildlife and people7.

Hormones are the chemical signals that regulate critical aspects of

our body functioning and behaviour. They influence our genetic makeup

and determine physical and psychological traits and as such, have the

capacity to adversely affect sexual behaviour, physical deformities,

sperm counts and atypical sex ratios in populations. About 50

chemicals have thus far been shown to act as endocrine disruptors7

under certain circumstances and suggest that they can harm

reproductive and immune systems and even change the behaviour of

certain wildlife species8.

Responses has been ad hoc and hap hazard resulting in the development

of voluntary multilateral environmental agreements for different

categories of chemical compounds and related activities, but no

holistic framework agreement for regulating all chemicals or related

wastes. For example, the Rotterdam Convention addresses trade and

7 For more information, see http://www.huffingtonpost.com/2013/10/28/hormone-disruptors-bpa-chemicals-dirty-dozen_n_4169806.html (accessed October 15, 2013)8 See http://www.ourstolenfuture.org (accessed October 17, 2013)

7


industrial chemicals and provides a system of Prior Informed Consent

to destination countries; the Stockholm convention addresses the

manufacture, trade, use and disposal of persistent organic pollutants

(POP) ; the Basel Convention handles the trans-boundary shipment and

management of exported hazardous wastes; the Montreal protocol is

concerned with the manufacture, use of ozone depleting substances and

nuclear and radioactive chemicals and material are monitored by the

International Atomic Energy Agency. However, despite the absence of a

framework instrument the United Nations Environment Programme (UNEP)

serves as a coordinating secretariat for all major conventions and in

recent years have tried to become more effective by organizing its

work in "chemical clusters" and place its research into the World

Summit agendas.

For the purposes of this paper, two key principles of International

Environmental Law have been chosen to analyse the risks involved in

the usage of pesticide and other chemicals and how to manage it. The

first principle is sustainable development, that is, development that

meets present needs without compromising the requirements of future

generations9. This principle recognizes the world as a global system

9 See Report of the World Commission on Environment and Development: Our Common Future United Nations 1987 (Brundtland Report)

8


that connects space and also time, for example decisions taken

previously by our grandparents will affect us today and current

decisions taken by us will determine the quality of life that our

children will have tomorrow. This principle has a more pervasive and

personal effect, since we are relating the use of chemical compounds

that can change the genetic structure of our reproductive organs and

influence not only our lives, but those of future generations.

The second is the precautionary principle which has four central

components: taking preventive action in the face of uncertainty;

shifting the burden of proof to the proponents of an activity;

exploring a wide range of alternatives to possibly harmful actions;

and increasing public participation in decision making10. It recognises

that the time required to complete tests on the effects of a hazardous

compound may result in irreparable harm to the environment and people

by the time the study is completed. Article 15 of the Rio Declaration

in 1992 implies that there is a social responsibility to protect the

public from exposure to harm, when scientific investigation has found

a plausible risk. These protections relaxed only if further scientific

findings emerge that provide sound evidence that no harm will result.

10 See David Kriebel et al, The Precautionary Principle in Environmental Science. Environmental Health Perspectives. VOLUME 109 | NUMBER 9 | September 2001

9


The worldwide acceptance of this principle has given it the status of

customary international law.

The complexity and behavioural characteristics of pesticides and other

chemical compounds coupled with their diverse origins have made it

very challenging to establish a holistic framework for their

management and control. Notwithstanding, a number of Multilateral

Environmental Agreements (MEA) have attempted to grapple with the

issues.

What then are the current issues facing us in the twenty first

century? The challenge as noted earlier is to maintain our risk

assessment ability, so as to keep up with the rapidity of new chemical

production and to use new and more effective techniques of discovery

of their effects. Theo Colborne et al have noted other effects of chemical

use11, such as:

1. There are demonstrable effects outside of the laboratory in wild

animal populations and in groups of people exposed by accident or

through medicine.(which would inform us of progressive

deterioration or effect of the use of chemical compounds)

11 See http://www.ourstolenfuture.org/Basics/keypoints.htm (accessed October 17, 2013)

10


2. Very low exposures show that the classic high dose experiments

can completely miss important low dose effects. Moreover, these

results are reproducible in the lab. This science does not rest

on extrapolating high dose curves down to the low end of

exposure.

3. It's not just estrogens. While the first two decades of this work

focused largely on man-made chemicals capable of mimicking

estrogen, within the last five years we've seen that expand to

include estrogen blockers, androgen blockers, progesterone

blockers and compounds that interfere with thyroid. This last one

is especially important because thyroid hormone is key to proper

brain development.

4. It's not just the disruption of the endocrine system. Natural

chemical signals are important at all levels of organization of

life--within cells, among cells, between organs, even between

organisms, including from one species to another. Any of these

chemical signals, in principle, are vulnerable to disruption.

Scientists, for example, have just begun to look at the chemical

signals that mediate communication between symbiotic organisms,

such as nitrogen-fixing bacteria and the roots of the plants in

which they live, and are examining how synthetic chemicals might 11


interfere with these signals. Disrupting these 'signals of life'

could have important ecosystem impacts.

5. The developing fetus is exquisitely sensitive to both the natural

hormone signals used to guide its development, and the unexpected

chemical signals that reach it from the environment. Both the

natural signals and the chemicals that disrupt them act as

"morphogens." They guide the fetus through forks in its

developmental path and also help set its sensitivity to

subsequent hormonal signals. This involvement of setting

sensitivity can have life-long consequences. New science, for

example, on the developing prostate, shows that natural and

synthetic estrogens experienced in the womb can lead to enlarged

and hypersensitive prostate in adulthood.

This information expands our knowledge of potential impacts and

provides great concern, since it is not expected that there would be

any abatement in the use of synthetic pesticides. Paul and Anne Ehrlich

have noted that each year 2.5 million tons of synthetic pesticides are

used worldwide establishing it as a multibillion dollar global

industry. Lester Brown et al12 have noted that despite the extensive use of

12 See http://www.pic.int/Procedures/SeverelyHazardousPesticideFormulations/tabid/1191/language/en-US/Default.aspx (accessed October 27, 2013)

12


these chemical controls pest and spoilage still account for 25-50% of

crop losses. This loss percentage is higher than average crop losses

were before synthetic pesticides were introduced after World War II.

Wide area broadcast spraying of pesticides as practiced locally by

Caroni 1975 Limited has been a poor pest control strategy as only a

very small proportion (.1%) of the chemical reaches the target pest.

Another reason is the rapid evolutionary cycle and resistive ability

of pest populations. These have been noted in multiple species of

bugs, bats, weeds, fungi and insects, which have become super

resistant. As a result, far too great tonnage of synthetic pesticides

are used for the results obtained. These excess chemicals become POPs

that can injure people and non-target species and migrate to the far

reaches of the globe.

Why do importing countries knowingly import banned pesticides? The

answer is three fold:

Firstly, each country has different cost benefit justifications. A

developing state might determine its overall interests is better

served by using relatively more dangerous chemicals, as the cost of

environmental harm and injury to farmers are outweighed by the benefit

of reducing insect borne illnesses such as Dengue and malaria or

13


bettering crop yields to feed its population. A developed country may

ban such a chemical if it does not have the same threat or

agricultural objectives.

The second justification for importation is a lack of information and

awareness at the local level – in developed countries, access to

information stimulates the public to demand stronger controls. This is

not the case in many developing countries. The cost benefit analysis

above is only possible if developing countries have the capacity

(financial) and accurate information to do the risk analysis or

relevant institutional and investigative infrastructure to control,

use and dispose of hazardous chemicals.

The third issue is private and corporate corruption, which arise from

the huge profit margins associated with dangerous chemicals and the

powerful institutional and political lobbies that super profits can

buy.

These issues arising from the lucrative trade in chemicals generally

and the scandalous revelations from environmental mishaps and the

general apprehension surrounding dangerous chemicals have led to calls

for an international system of information exchange, in particular, a

system of Prior Informed Consent (PIC) where the importing countries 14


are given the opportunity to make informed choices about receiving

specific chemicals. These efforts were initiated with voluntary codes

such as the FAO International Code of Conduct on the Distribution and

Use of Pesticides and the London Guidelines for the Exchange of

Information on chemicals in International Trade. Both parties moved in

tandem with pesticides and industrial chemicals and were the first

voluntary standards in 1985. The adoption of the code left unresolved

the issue of PIC, which would allow importing countries to refuse

shipments of pesticides banned or severely restricted in exporting

countries. Other criticisms by developing countries were that the code

was too weak- non-binding and voluntary and without enforcement

mechanisms and without technical assistance for developing countries

for risk assessment, monitoring and enforcement.

Both of these codes were adopted at the Rotterdam Convention along

with the establishment of a PIC procedure in 1998. The Convention

comprised 154 parties with 72 signatories and came into force in

February 2004. At the present time 154 parties have ratified the MEA.

Generally speaking the Convention bans the export of any chemical

listed in Annex III13, unless the importing country has given its

13 See http://www.pic.int/Procedures/SeverelyHazardousPesticideFormulations/tabid/1191/language/en-US/Default.aspx (accessed October 27, 2013)

15


consent. Chemicals are listed when they have been banned or severely

restricted in the exporting country. Banned Chemicals include those

that have been refused approval for first time use or withdrawn by

industry in order to protect human health. Severely restricted

includes chemicals with evidence of human health and environmental

concerns. The operational mechanism for implementing this agreement is

the Conference of the Parties (COP) which met annually, but has become

a bi-annual meeting of all the signatories to examine new issues,

review and enforce decisions taken.

Strengths of PIC Agreement:

1. Provides importing country with advanced information on hazardous

chemicals, which the Government may not know otherwise.

2. Educates officials on handling method and potential harms.

3. Allows Government to seek other options to the hazardous

chemical.

4. Allows sharing of information and networking.

5. Protects the country from POPs

6. Provides a tracking system, so as to monitor effects.

16


Weaknesses

1. Voluntary procedures do not create strong obligations or

incentives for compliance.

2. Lack of institutional resources at receiving end to undertake

protective measures.

3. Developing countries do not have strong regulatory history and

corruption of enforcement officials is an issue in many developing

countries.

A group of powerful pesticides that persist over long periods in the

environment known as Persistent Organic Pollutants (POPs) have caused

a great deal of concern in recent years. In May 1995 the UNEP adopted

a decision focusing on 12 priority POPs (the dirty dozen) establishing

a process for evaluating their impacts on human, plant and animal

health, relevant transport pathways globally, sources, risks, benefits

and other considerations. The experts found that sufficient evidence

existed to warrant international action. In December 2000 at the

Stockholm Convention, 122 states finalized a new treaty aimed at

reducing and eliminating POPs. POPs were categorised as pesticides,

industrial chemicals and unintended by products or waste. The treaty

17


called for an immediate ban on 8 of the 12 identified POPs. It bans

the production and use of intentionally produced POPs and

unintentionally produced POPs where feasible.

Strengths of POPs Procedure:

1. Establishes a database of hazardous chemicals.

2. Bans use and production of specific hazardous chemicals

3. Highlights dangers associated with hazardous chemicals and

provides method for phasing out existing hazardous chemicals.

4. Provides an assessment procedure to list industrial chemicals and

to control production and development of new POP.

5. Allows tracking of hazardous chemicals

6. Ban provides an incentive for research into environment friendly

alternative solutions.

7. Identifies stockpiles of hazardous chemicals and develops

strategy to eliminate it.

8. Forces parties to establish national implementation plan to

manage hazardous chemicals.

18


9. Obligated to educate public on dangers of POPs and to share

information, cooperate in monitoring, eliminating and sharing

research data on POPs.

Weaknesses

1. Voluntary agreement

2. Lack of institutional and regulatory resources to enforce all

aspects of agreement.

3. Corrupt customs and government officials, who are reluctant to

enforce ban.

4. Lack of proper research facilities and staffing to undertake

testing and monitoring of long term effects of POP

5. Poor record of treaty implementation at national level and timely

passage of enabling legislation.

Recommendations

The PIC and POP procedures have been generally effective in reducing

the negative impact of pesticide use, particularly in highlighting

very hazardous chemicals globally. However, its success has been

stymied at the national levels, since like many of the MEAs,

19


implementation has been lethargic for a variety of reasons. A key one

is that there is no holistic approach to achieve the synergies

available. Duplicative efforts waste scarce resources. To an extent,

this has been recognised by the UNEP and an attempt to develop a more

coherent approach was attempted in 2006 under a "Strategic Approach to

International Chemicals Management"(SAICM)14. Important aspects adopted

are a life cycle approach to monitoring hazardous chemicals, which

follows the path of the chemical to it endpoint and the setting of a

target date for full implementation of 2020. To illustrate how the

MEAs can be more effective on a national scale, I will use Trinidad

and Tobago to focus my recommendations.

There is the need to develop a policy and legal framework to

incorporate the key principles of these MEAs into national law to

enable compliance. This requires some level of legal assessment and

reform to incorporate the issues listed below:

1. We must allocate resources to improve the capacity of

institutions to regulate the importation of products that are

regulated by MEAs. This is key to improving detection and

enforcement

14 See www.chem.unep.ch/saicm for details (accessed October 28, 2013)20


2. Tax incentives to reduce use of certain chemicals imposed on

industry. This is where the implementation of the polluter pays

principle would be useful. The polluter pays principle is a part

of the environmental law in T&T but it’s debatable whether the

subsidiary legislation on pollution standards (i.e. noise

pollution and water pollution) implement the polluter pays

principle.

3. Local corporate bodies should be encouraged through tax

incentives to form active environment watch groups to educate and

further the implementation of international protocols and

disseminate its studies and findings on industrial and organic

chemical compounds. A permanent database managed by the Ministry

of the Environment should be made available to disseminate and

receive data on hazardous and industrial chemicals, along with

links to research studies and the latest information. The

Ministry along with the Environmental Management Authority (EMA)

should also coordinate the work of these groups by sponsoring a

semi- annual workshop to update on international protocol

implementation.

4. Collaboration among ALL sectors relevant to the management and

importation of chemicals would be necessary. This would include 21


ministries responsible for Agriculture, Health, Water and

Environment, so as to develop the capacity to monitor the use and

effects of many of the pesticides imported into the island. In

this regard, scholarships should be provided for research studies

in hazardous chemicals and waste remediation.

5. Implement the precautionary principle by forcing chemical

companies to prove the safety of existing chemicals which are

suspected of hazardous effects. This reverse onus of proof will

instruct the removal of dangerous chemicals from the market.

6. Fulfill the public right to know by undertaking a national

campaign to educate the public on the dangers of pesticides and

by products which may result from improper disposal, such as the

frequent burning of plastics and tyres. (Another IEL principle:

transparency/public participation and access to information)

7. Mandate medical institutions to report cases of chemical

poisoning to the Ministry of the Environment so that follow up

investigations can be undertaken.

CONCLUSION

Finally, these measures require a firm commitment by the respective

government to protect its' citizens now and in the future regardless

22


of the political and economic costs. In reality, this commitment is

hard to obtain and often gives way to economic and political interests

at the expense of the citizenry. Notwithstanding our only hope is for

the UNEP to continue educating the world and to win additional

believers in sustainable development and to adopt the precautionary

principle.

BIBLIOGRAPHY

United Nations Environment Programme, Training Manual on International

Environmental Law.

Birnie P, Boyle A, and Redgwell C, International Law & the Environment

(3rd edn, Oxford University Press 2009).

Brown L, Renner M, Starke L, Halweil B; Vital Signs 2000: The

Environmental Trends That Are Shaping Our Future; World Watch Institute,

State of the World 80 (2000)

Colborn T, Dumanoski D, and Peterson Myers J, Our Stolen Future: Are We

Threatening Our Fertility, Intelligence, and Survival? A Scientific Detective Story. New

York : Dutton, 1996.

Aktar W, Sengupta D, Chowdhury A, Impact of pesticides use in agriculture:

their benefits and hazards. Interdisc Toxicol Vol. 2 (1) 2009. 23


Ahmed Azmi M, Naqvi S, Pesticide Pollution, Resistance and Health Hazards.

Baqai Medical University Press, Pakistan.

Hunter D, Salzman J, Zaelke D. International Environmental Law and Policy.

3rd Ed. Foundation Press.

Carson, R. Silent Spring. Boston : Houghton Mifflin ; Cambridge,

Mass. : Riverside Press, 1962

Report of the World Commission on Environment and Development: Our Common

Future

United Nations 1987 (Brundtland Report)

David Kriebel et al, The Precautionary Principle in Environmental Science.

Environmental Health Perspectives. VOLUME 109 | NUMBER 9 |

September 2001

The United Nations Conference on Environment and Development, Rio

Declaration on Environment and Development, (Rio de Janeiro 3 -

14 June 1992)

Ehrlich P, Ehrlich A, Betrayal of Science and Reason: How Anti-Environmental

Rhetoric Threatens our Future, Island Press, 1996

24

Date post:	23-Jan-2023
Category:	Documents
Upload:	uwi
View:	0 times
Download:	0 times

Environment law assignment 002

Documents