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Useful terms

Useful terms. An Insight Into International Trade of Chemicals. At $1705 bn chemicals rank second in global exports, next only to fuels ($2862 bn ) and is way ahead of agricultural products ($ 1342 bn).

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Useful terms

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  1. Useful terms

  2. An Insight Into International Trade of Chemicals • At $1705 bn chemicals rank second in global exports, next only to fuels($2862 bn) and is way ahead of agricultural products($ 1342 bn). • Between 2006 and 2008, the world export of chemicals increased from $1248 bn to $ 1705bn. Source: WTO, International Trade Statistics, 2009 Europe (notably the EU-27) has a lion’s share .

  3. Origins of the Stockholm Convention At the 1996 Singapore Ministerial Meeting of the WTO, the European Community (EC) announced its plans to facilitate the introduction of Multilateral Environmental Agreements (MEAs) involving chemicals negotiated through UNEP(United Nations Environment Programme). The Stockholm Convention was primarily developed by the EC for multilateral adoption through UNEP. Largest exporter of chemicals in the world Strong hegemonic control over the conduct of the Stockholm Convention EUROPE Largest donor to the UNEP Of theseven new chemicals listed in the trade restrictive annexes of the Stockholm Convention, six were proposed by the Europe. All these are generic and off patent chemicals, largely relevant for the chemical industry in emerging economies.

  4. Some Fundamentals Stockholm Convention(SC) WTO Develops and enforces rules for international trade and ensures fair play. World Trade Organization (WTO) was established in 1995 subsequent to the1948 General Agreement on Tariffs and Trade (GATT) 153 countries are members . Decisions are by consensus. • Seeks to derive its WTO legitimacy from the GATT Article XX (b) that allows WTO member countries to adopt and enforce measures “necessary” to protect human, plant and animal life under certain conditions. • Text of the Convention was carefully negotiated for nearly three years mindful of the need to keep it WTO consistent. Entered into force on17th May 2004 • 170 countries are Parties to the SC. 135 of them are also members at the WTO. • Substantive decisions are by consensus as per the Rules of Procedure (Rule 45).

  5. Some Fundamentals (Cont’d) Stockholm Convention (SC) WTO Has a formal two tier Dispute Settlement Body (DSB) that works to a fixed time schedule. Fundamental purpose of the GATT Article III is to avoid protectionism in regulatory measures. WTO strongly reinforces this. WTO does not permit unjustifiable measures that serve as disguised restriction on international trade. • No formal dispute settlement body is available (unlike WTO) • Trade restrictive decisions sanctioned by the SC are irreversible and involve completeban or severe restriction of production, use , exports & imports of the chemicals concerned. • A chemical listed in the SC, exits from international trade and global use- immediately (Annex A) or gradually (Annex B) • Decisions could bring huge economic gains to some countries and huge loss to others. • No monetary compensation is available to the affected industry (unlike Montreal protocol)

  6. Technical Regulation of WTO Stockholm Convention • The WTO Appellate Body ( in EC-Asbestos) held that “ A technical regulation is a document which applies to an identifiable product or group of products , lays down product characteristics …including the applicable administrative provisions with which compliance is mandatory” • Stockholm Convention (SC) is a technical regulation as it applies to identifiable chemicals with certain characteristics and carry administrative provisions with which compliance is mandatory • WTO Agreements on Technical Barriers to Trade (TBT) and Sanitary and Phytosanitary Measures (SPS) contain provisions for framing technical regulations to protect health & environment. • Article 5.1 of SPS Agreement requires regulatory measures be not maintained “without sufficient scientific evidence” • Trade restrictive decisions in SC cannot be developed , adopted and applied contrary to WTO principles governing technical regulation and procedural fairness. Any failure, would make the SC decision WTO inconsistent .

  7. Implementing both WTO and SC in Good faith Both the WTO and the SC do have a common area of interest i.e. trade in chemicals In other words, the Stockholm Convention must be performed in “good faith” – especially, by countries that are also members at the WTO”.

  8. Committee on Trade and Environment (CTE) of the WTO A Ministerial Decision in 1994, created the WTO’s Committee on Trade and Environment (CTE). The Doha Ministerial Mandate of the WTO (2001) calls for negotiations by WTO members ( within the CTE) on “the relationship between the existing WTO rules and specific trade obligations set out in MEAs “(such as the Stockholm Convention).

  9. What CTE says about MEAs? “In the event of a conflict in the WTO over the trade measures prescribed in an MEA… the CTE expressed hope that WTO dispute settlement provisions are satisfactory for tackling such problems. It is also possible for WTO dispute settlement panels to resort to environmental expertise in cases where this problem could arise” -CTE on Trade Rules, Environmental Agreements and Disputes “ …..because….. POP Convention [Stockholm Convention] has a trade related process, co-ordination with WTO would be important” WTO-CTE Document TN/TE/4 dated 2nd Dec 2002 • Possible role of WTO’s dispute settlement panel is acknowledged by the CTE. • Risk evaluation and resultant trade measures developed and applied on a chemical through Stockholm Convention cannot be in clinical isolation from WTO principles, rules and procedural fairness.(See Reformulated Gasoline case- WTO Appellate Body)

  10. SPS Measures. A caution from WTO “ An SPS measure which is not actually required for health reasons can be very effective protectionist device and because of its technical complexity, a particularly deceptive and difficult barrier to challenge” - www.wto.org Article 2.2 of the TBT Agreement states: “ Members shall ensure that technical regulations are not prepared, adopted or applied with a view to or with the effect of creating unnecessary obstacles to international trade. For this purpose, technical regulations shall not be more trade restrictive than necessary to fulfill a legitimate objective taking into account of the risks non-fulfillment would create. Such legitimate objective are, inter alia… protection of human health or environment..” • One of the basic goals of WTO –SPS and TBT Agreement is to ensure that technical regulations do not represent unnecessary, arbitrary, scientifically unjustifiable or disguised restriction on international trade. • SC is technical regulation. Its trade restrictive decisions must meet these requirements.

  11. Decision Making at the SPS Committee and the SC The SPS Committee of the WTO makes its decisions by consensus. At the WTO SPS committee consensus is reached “ if no member present at the meeting where the decision is taken formally objects to the proposed decision”. In the Stockholm Convention’s POP Review Committee (POPRC) too, all substantive decisions are to be taken by consensus as per its Rules of Procedure (Rule 45)

  12. Trade Measures in Article 8 of the SC Many have identified Article 8 of the SC to contain trade measures. In its submission TN/TE/W/23 dated 20th Feb 2003 before the CTE of the WTO, India identified Article 8 of SC to be carrying trade measures. Article 8 of Stockholm Convention deals with : - proposing trade measures on a chemical (by a party to the SC) - evaluating the chemical’s risks , if any, arising from its long range environmental transport (by the POPRC) - evaluating if such risks lead to “significant adverse effects” to human health or environment to warrant global regulatory action (by POPRC) - rejecting the proposal or recommending it for trade restrictive measures to the Conference of Parties (COP) by the POPRC. - final decision (adoption or rejection) by the Conference of Parties. Every decision in Article 8 should be strictly in conformity with the text and rules and procedures of the Stockholm Convention.

  13. Crucial Substantive Decision in the SC The most crucial substantive decision in SC is for the POPRC : “ to evaluate whether the chemical is likely, as a result of its long-range environmental transport , to lead to significant adverse human health and /or environmental effects such that global action is warranted” ( Annex E read with Article 8.7a ) • Note, this would mean, the POPRC’s risk evaluation must establish that: • there are health and/or environmental effects and • the effects are adverse and • the adverse effects are significant and • the significant adverse effects are likely as a result of long range environmental transport of the chemical under evaluation. • Essentially, this is a dose – response evaluation taking into account the measured levels of presence of the chemical in remote areas resulting from its long-range environmental transport. • Trade restrictive decisions on a chemical in the SC (listing in Annex A or B) can not be authorized arbitrarily or unjustifiably without establishing the significant adverse effects linked to the chemical’s long range environmental transport. .. Cont’d

  14. (Cont’d) The SC carries a mandate to scientifically establish through the POPRC: “whether the chemical is likely, as a result of its long range transport, to lead to significant adverse human health and /or environmental effects, such that global action is warranted” • The term “likely” indicates likelihood proving probability of occurrence of significant adverse effects rather than mere possibility. • For significant adverse effects to occur, measured levels of the chemical in the environment and biota in remote areas should be far above “ No Observed Adverse Effect Level” (NOAEL) and the “Lowest Observed Adverse Effect Level” (LOAEL). • NOAEL denotes concentration of a chemical at which there is no observable adverse effects. • LOAEL denotes the lowest concentration of a chemical at which adverse effects begin to show up. • The term “Adverse effects in the Stockholm Convention has been purposely qualified and limited by the word “significant” to denote the degree of adverse effects required to warrant global action.

  15. Some important decisions by the Appelete Body and the Panel of the WTO • on risk evaluation appropriate for imposing trade restrictive measures • their relevance to trade restrictive decisions under the Stockholm Convention

  16. Example I The WTO – AB (Appellate Body) said in the EC Hormone case that: “ the risk to be evaluated …is not only risk ascertainable in a science laboratory operating under strictly controlled condition, but also risk in human societies as they actually exist…..in the real world where people live….” “theoretical uncertainty is not the kind of risk to be assessed….” • Applied to Stockholm Convention, this would mean: • Only when the risk of a chemical resulting from its long range environment transport is ascertainable to manifest as “significant adverse effects” in the real world ( and not only in the laboratory) the consequent trade restrictive decisions from the SC can be considered consistent with WTO principles. • Theoretical and uncertain risks cannot lead to trade restrictive decisions.

  17. Example II The WTO-AB further said in the EC Hormone case that: “ … it is not sufficient that the risk assessment concludes that there is a possibility [of risks].. A proper risk assessment must evaluate the probability [ of the risks] … some evaluation of the likelihood [of the risks] is not enough..” • Applied to the Stockholm Convention, this would mean: • Risks evaluated by the POPRC, cannot merely point to possibilitiesof significant adverse effects arising from long range environmental transport of a chemical. It should establish probabilities of significant adverse effects. • Some evaluation of likelihood of “significant adverse effects “would not be enough either.

  18. Example III According to well established WTO tenets, risk evaluated must be specific. The WTO-Panel in the EC Hormone case found fault with scientific studies valued by the European Community for dealing with only higher hormone levels and adverse effects rather than specific risks posed by hormone residues as may be present in the beef. Identification of adverse effects [if any] arising from hormones as present in meat is a “condition sine qua non ( a condition that is essential and indispensible). The Appellate Body upheld this. • Applied to the Stockholm Convention, this would mean: • The risks relevant to the SC (significant adverse effects to human health and /or environment) can not be linked to the high dose inherent toxicity of the chemical under review. • Evaluation by the POPRC must show significant adverse effects from trace levels* of the chemical resulting from its long range environmental transport. *Trace Levels ppm : Part per million = one in 1000, 000 ,ppb : Part per billion = One in 1000,000,000 ppt : Part per trillion = One in 1000,000,000,000 ppq: Part per quadrillion = One in 100,000,000,000,000

  19. Example IV The WTO-AB observed in Canada/US Continued Suspension case : “ Review powers of a panel… is to determine whether risk assessment is supported by coherent reasoning and respectable scientific evidence and is … objectively justifiable” The WTO-AB in Australia- salmon held that : “ A measure based on no risk assessment or insufficient risk assessment is a warning signal for a disguised restriction on international trade” • Applied to the Stockholm Convention , this would mean: • The POPRC’s risk assessment establishing “significant adverse effects” must be objectively justifiable, supported by coherent reasoning and respectable scientific evidence. • Trade restrictive decision based on nil or insufficient evidence of “significant adverse effects” should be considered to signal a disguised restriction on international trade.

  20. Example V The WTO-AB set aside Japan’s measures in Apple Fire Blight case ( USA vs Japan) because: “ .. it was maintained without sufficient scientific evidence… and as Japan failed to consider wealth of scientific evidences that did not support its measures..” The AB also held that disproportion between risk identified by scientific evidence and SPS measures implies that there is no rational or objective relationship” • Applied to the Stockholm Convention, this would mean: • The POPRC’s risk evaluation establishing significant adverse effects must not be biased considering only a few selective scientific evidences discarding the ones that show the opposite. • Significant adverse effects must be established with sufficient scientific evidence. • If the risk is negligible (de minimis) or practically non existent , strict trade measures ( ban or severe restriction) can not be justified.

  21. Example VI The WTO-AB held in the Japanese measures affecting agricultural products case that: “ .. There was no rational relationship between the measures taken and scientific evidence submitted… and the measures were more trade restrictive than required..” • Applied to the Stockholm Convention, this would mean: • There must be rational relationship between the “significant adverse effect” established and the trade restrictive decisions. • Otherwise, the decision could be termed more trade restrictive than required.

  22. Example VII The WTO-AB said in the EC – Sardine “- Article 2.4 of the TBT agreement provides that members shall use relevant international standards or relevant parts of them as basis of their technical regulations” • Applied to the Stockholm Convention, this would mean: • The risk evaluations in the Stockholm Convention must use standards or toxicity thresholds established by such international bodies as CODEX, JMPR (WHO/FAO) as a basis of decision making. • WTO members who are also parties to the Stockholm Convention need to be mindful of this important obligation. • WTO members must uphold this obligation in “good faith”.

  23. Example VIII WTO on the application of Precautionary Principle “ .. Till date there has been no authoritative decision by an international court or tribunal recognizing precautionary principle as a principle of general or customary international law..” -WTO Panel in EC GM case WTO AB has also held that any trade restrictive measure taken in a precautionary manner can only be a temporary measure as per (Article 5.7 of the SPS Agreement). • Applied to the Stockholm Convention, this would mean : • Significant adverse effects can not be established using scientific speculation guided by precautionary approach.

  24. Summary/Relevance of WTO- AB Decisions/ Principles Cited • Risk evaluation and trade restrictive decisions in the Stockholm Convention cannot be developed, adopted and applied in clinical isolation from WTO principles governing the technical regulation and procedural fairness. • Countries that are members to both WTO and Stockholm Convention must perform their treaty obligations in “good faith”. Stockholm Convention should not be used to side step their WTO obligations. • In the Stockholm Convention, the determination of the significant adverse effects from a chemical must be specific and clearly linked to its measured levels resulting from its long range environmental transport and not to its high dose inherent toxicity levels. All substances are toxic in high doses. • The significant adverse effects must shown to manifest in the real world with sufficient scientific evidence . It can not be a scientific speculation. • Observations and toxicity thresholds (NOAEL or LOAEL) already set by international organizations such as WHO for the chemical must be considered during its risk evaluation. • Non existent or practically negligible adverse effects ( de – minimis adverse effects) can not qualify to be considered as significant adverse effects for introducing trade restrictive decisions under the Stockholm Convention. • Trade restrictive decisions from the Stockholm Convention on a chemical should not be unnecessary, arbitrary, scientifically unjustifiable or disguised restriction on its international trade. Cont’d

  25. A Case Study EU/EC’s proposal dated 26th July 2007 concerning Endosulfan • Why this proposal for the case study under Stockholm convention? • Presents a strong prima facie case showing how decision making in the Stockholm Convention can and does go wrong against the basic tenets of the WTO. • It involves a chemical currently most actively in the international trade. • Most appropriate alert to facilitate corrective measures at the next COP in 2011.

  26. About Endosulfan-I • A generic insecticide used for crop pest control in agriculture. Registere d and being used a veterinary pesticide too in the USA. • Inexpensive and easily affordable. Ranks among top 10 generic insecticides in the world • Present market size is estimated to be $ 500 million. • Considered to be most ideal for use in a variety of crop & pest situations and well suited for use in cross pollinated crops and in IPM systems. • First introduced by a firm in Europe. Between 1954- 2006, an estimated 1 billion litres had been manufactured in Europe. Production in Asia started from 1980s. • Its production in the Europe ceased in 2006. The European Commission nominated Endosulfan to Stockholm Convention in 2007.

  27. About Endosulfan-II • Reviewed periodically over 10 times since 1967 by international body - Joint FAO/WHO Meeting on Pesticide Residues (JMPR) for toxicological effects. • WHO/FAO reviews do not consider it to be a Carcinogen or Mutagen or Teratogen. • Does Endosulfan bio-accumulate? • “Endosulfan and Endosulfan sulphate do not bioaccumulate in organisms due to the extensive metabolism “ (Joint FAO/WHO meeting - JMPR(2006 ) • “Endosulfan residues depurate rapidly in aquatic invertebrates and fish……laboratory studies have shown that Endosulfan residues are metabolized in fish and mammals; therefore they would not be expected to bioaccumulate” PMRA, Canada (2007) • “There is no clear evidence of biomagnification from invertebrates to fish and fish to predatory fish in arctic” Mackay & Arnold (2005) • Acceptable Daily Intake (ADI): This is the amount of a substance in food and drinking water that can be ingested over a lifetime without any health risks. • ADI for Endosulfan set by FAO/WHO is 0.006mg/kg of body weight. If an adult of 60kgs ingests 0.36 mg of Endosulfan daily, no adverse effect is expected in his/her life time.

  28. EU Proposal. Major Procedural Issues- I • POPRC-3 (19th- 23rd Nov 2007) did not examine the EU /EC proposal claiming “vital information was missing in the proposal” . Inconsistent with Article 8(3). • POPRC-3 did not apply screening criteria at the request of an EU –POPRC member. Inconsistent with Article 8 (3) and Rules (e) and (h) of COP’s decision SC1/8. • POPRC-3 ‘s examination of the EU’s proposal was deferred by 12 months to POPRC-4 to enable the EU to fix the vital information allegedly missing. Convention does not allow such deferment and amendment of the proposal after submission. Inconsistent with Article 8(4). • At the POPRC-4 (13th- 17th Oct 2008), the amended proposal of the EU was officially introduced by an ex-POPRC member from the EU. Inconsistent with Rule 3 (i) &(j) COP’s decision SC-1/8 on Conflicts of Interest. • Annex- E Risk profile was not prepared by POPRC, but by a consultancy firm in the EU managed by an ex-POPRC member on contract from European Commission .It was subsequently given to the POPRC-5 for adoption. This led to strong protests but all in vain. Inconsistent with Article 8(6) and Rule 28 of SC-1/7. • Annex –D and Annex E decisions(substantive decisions) were taken by majority votes instead of consensus ignoring protests. Inconsistent with Rule 45 of SC-1/1

  29. Major Procedural Breach Explained • The phrase as given in the Annex E review is important. It expressly states: • “ The purpose of the review is to evaluate whether the chemical is likely, as a result of its long range environmental transport, to lead to significant adverse human health and/or environmental effects, such that global action is warranted” (para I of Annex E) • The term “The purpose”is used in singular and conditional tense- implying that this is the only purpose. • The duty to do the review/evaluation together with the preparation of risk profile is assigned to the POPRC. It is a non delegable duty. • In the case of the EC-Endosulfan proposal , this duty was delegated to and performed by a private consultancy firm in the EU (Spain) managed by an ex POPRC member who had earlier introduced the EU proposal at POPRC-4. This is unacceptable and illegitimate as held by WTO- AB in Japan-Apple case [Risk] evaluation contemplated should not be distorted by preconceived views on the nature of the measure to be taken…nor …an exercise …justifying decisions ex post facto.”

  30. Conclusion Scripted by the EC and Adopted by POPRC…! The private consultancy firm in Spain contracted by the European Commission ( an observer to the SC) to review/evaluate the EC proposal and to draft the risk profile for Endosulfan concluded in its 26 page report that: “…. Based on the inherent properties, and given the widespread occurrence of Endosulfan in environmental compartments and biota in remote areas…….together with the uncertainty associated to the not sufficiently understood role of the metabolites which maintain the Endosulfan chemical structure, it is concluded that the substance is likely , as a result of its long- range environmental transport, to lead to significant adverse human health and environmental effects, such that global action is required. • This conclusion from the consultant (contracted by the European Commission ) was accepted and adopted by the POPRC-5 on 16th Oct 2009- by majority votes instead of by consensus ignoring protests from many. • Thus, the notifying Party (EC) not only submitted the proposal concerning Endosulfan ,but also subsequently scripted and supplied the final decision for the POPRC to adopt. • This is a clear case of hegemony and abuse of process in deciding the trade restrictive measures in the Stockholm Convention. “ Procedural justice is an essential pre- condition for substantive justice (H. Nehl)

  31. Substantive Decision: The Operative Words • The Stockholm Convention seeks to scientifically establish through the POPRC: “whether the chemical is likely, as a result of its long range transport, to lead to significant adverse human health and /or environmental effects, such that global action is warranted” (Annex E read with Article 8.7a) • Note the operative words significant adverse effects . It’s not some adverse effects. • Global action can be warranted only when there are significant adverse effects resulting from a chemical’s long range environment transport. • If any decision is taken in contravention of these operative words in the Convention, it increases the likelihood of conflicts between the Stockholm Convention and GATT/WTO . • Such a decision can be considered arbitrary or unjustifiable discrimination or a disguised restriction on international trade • Annex E and Article 8.7a would be deprived of their effet utile if they can not prevent non existent or negligible (de minimis) adverse effects being considered or projected or accepted as significant adverse effects.

  32. Major Substantive Issues • Highest measured values of Endosulfan residues in Arctic environment are in trace levels such as 0.000001 mg ( nano gram) to 0.000000001 mg (pico gram) . In Sea water : 0.000000002 - 0.0000001 mg/L or 2-10 pg/L In fresh water : 0.000000135 - 0.000000734 mg/L or 0.135-0.734 ng/L Air(average from 1993-2005) : 0.00000003 - 0.00000006 mg/L or 3-6 pg/m3 • As stated by Mackay N Arnold (2005), these are far below the values that would be expected to produce any ecological or human health effects. • These are 100,000- 1000,000 times lower than the possible effect levels. • US-EPA permits presence of Endosulfan up to 0.74mg/L (74µg/L) in lakes and rivers. • Acceptable Daily Intake (ADI) for Endosulfan set by WHO/FAO for an adult man (60 kgs) is 0.36 mg (@ 0.006mg/kg body weight).

  33. Major Substantive Issues POPRC has not shown scientifically the causal link between trace levels of Endosulfan such as 0.000001 mg ( nano gram) to 0.000000001 mg (pico gram) in the environment and significant adverse effects. POPRC’s decision states : Endosulfan is highly toxic to the environment and there is evidence suggesting the relevance evidence of some effects on humans… based on inherent properties of Endosulfan and …widespread occurrence in environmental compartments…it is concluded that Endosulfan is likely, as a result of its long range environmental transport , lead to significant adverse human health and environmental effects, such that global action is warranted” Toxicity of Endosulfan at high doses or inherent properties of Endosulfan or its presence in environmental compartments are not multilaterally mandated and permissive reasons for global action under the Convention For global action, determination of significant adverse effects produced by measured levels of Endosulfan , resulting from its long range environmental transport is a condition sine qua non -a condition that is essential and indispensable- as required by Annex E read with Article 8(7)(a) of the Convention. WTO- AB’s decision on EC- Hormone case is relevant here.(See slide no:19)

  34. The EC opinion vs Experts Opinion • The supplied opinion of the European Commission about Endosulfan (subsequently accepted and adopted by the POPRC), totally disregarded what experts say about Endosulfan’s effects arising from its long range environmental transport.

  35. The Objective and the Procedure The objective of the SC …”to protect human health and the environment from persistent organic pollutants” given in the Article 1 and [Trade] “measures to reduce and eliminate”[chemicals] given in the Article 3 have to be distinguished. The first is an “objective” and the second is an “instrument” chosen to attain that objective. • The provisions in Annex E read with Article8 (7)(a) of the SC clarify the correlation between significant adverse effects to human health and/or environment and the trade measures in Article 3. • Determination of significant adverse effects to human health and /or environment resulting from long range environmental transport is the decision making process which logically precedes and is separate from deciding the trade measures. • POPRC can not determine the significant adverse effects with some vagueness or equivocation that would render nugatory entire or part of Annex E read with Article 8(7)(a) and allow the review committee to escape from its obligation under the Convention. • Significant adverse effects must be established with sufficient precision. ( adapted from WTO- AB decision on Australia- Salmon. WT/DS 28/AB/R)

  36. Concluding Comments General : • Stockholm Convention concerns chemicals , the second largest commodity in the international trade.(See slide no: 3). Trade restrictive decisions in the Convention on a chemical leads to its losing its market access and share to “like chemicals” ( in WTO parlance) that are directly competitive or substitutable. • Of the 170 countries that are parties to the Stockholm Convention, 135are also members of the WTO. • It is not sufficient that the text of the Stockholm Convention remains consistent with the WTO rules. It’s implementation must be demonstrably consistent with the WTO rules. Due diligence ( procedural and substantive) must be followed without breaches. • Stockholm Convention can’t be used to sanction breaches by members of their WTO obligations. It can’t be used to sanction trade restrictive decisions that are unnecessary ,arbitrary, scientifically unjustifiable and disguised restrictions on international trade. Cont’d

  37. Concluding Comments General : (Cont’d) • The Stockholm Convention contains an explicit obligation to determine the likelihood of significant adverse effects to human health and/or environment resulting from long range environmental transport of a chemical before deciding if the chemical warrants global action by way of trade restrictive measures- listing in the Convention’s Annex A or B. This must be established with sufficient scientific evidence. Any failure in this would not only make the decision inconsistent with Annex E read with Article 8(7)(a) of the Convention but also be inconsistent with GATT/WTO requirements. • Once a chemical is proposed to the Stockholm Convention, the Convention’s Secretariat invariably puts it in a sort of “auto pilot mode” under the presumption that all the proposed chemicals do necessarily meet Annex D and Annex E requirements of the Convention. That clearly can not be the case. Cont’d

  38. Concluding Comments • Comments specific to EC’s proposal concerning Endosulfan: • The EC’s proposal concerning Endosulfan exposes all that can go wrong at the Stockholm Convention and establishes a strong prime facie case for immediate corrective action . • From 1954 till 2006, the Europe had manufactured hundreds of thousands of tons of Endosulfan with no negative impacts to human health and environment. After the Europe stopped its production in 2007, Endosulfan suddenly becomes ( in the opinion of the EC) the most dangerous chemical even at trace levels of less than 0.0000000001 mg to warrant global ban through the Stockholm Convention ! The EC’s proposal evidently smacks of trade protectionism in the guise of environmental protection. • The risk evaluation under the Stockholm Convention can not be reduced to a fast track procedural examination and swift approval of the trade restrictive measure as favored by the notifying party- in this case the European Community(EC). • POPRC’s recommendation to list Endosulfan in the Stockholm Convention is clearly based on inappropriate, inadequate and questionable evaluation of the EC’s proposal and is unsupported by sufficient scientific evidences. POPRC’s recommendation is contrary to the observations of international bodies such as JMPR(WHO+FAO), CODEX etc. and the toxicity thresholds set by them.

  39. Suggested Corrective Actions • Efforts must be immediately taken to restore the due process ( procedural and substantive) in the Stockholm Convention. This is important for the maintenance of carefully negotiated balance between the Stockholm Convention and the WTO - between the shared but sometimes competing interests of protecting the environment and promoting the international trade. • Serious procedural and substantive breaches involved in POPRC’s handling of the EC’s Endosulfan proposal need to be comprehensively probed by an independent enquiry team appointed by the COP – ideally with observers from the WTO. • A regular appellate body may be created in the Convention to enquire and address complaints of the kind narrated in this case study – similar to the DSU of the WTO. • The text of the Stockholm Convention may be amended to bring in increased transparency and strong accountability at every level to prevent hegemony by a powerful bloc that has strong economic interests in the global chemical trade.

  40. For further information, please contact: S.Ganesan Chairman (International Treaties Expert Committee) Indian Chemical Council India E mail : tsganesan@rediffmail.com ganesanicc@gmail.com Tel : +91 99595 52725 The author has qualifications in science and environmental law. He attends all meetings of the Stockholm Convention since 1998, representing Indian Chemical Council (ICC) and has authored several policy advocacy papers concerning global conventions in the field of chemicals.

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