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    AccueilEnvironmentA Toxic Double Standard: Analyzing the Legality of the Export of Banned...

    A Toxic Double Standard: Analyzing the Legality of the Export of Banned Pesticides

    Decades of research demonstrate that pesticides can cause negative effects on environmental and human health. This has led some States to ban or deny the approval of certain active substances used in pesticides in order to protect people and the planet. However, there is currently no binding international agreement that broadly regulates pesticides.

    As of 2023, a small number of highly hazardous pesticides, including the well-known dichloro-diphenyl- trichloroethane (DDT), have been restricted under international law. But more must be done to address the gap in the regulation of the thousands of other pesticides that pose risks to communities and ecosystems.

    Many States and the European Union (EU) have adopted domestic measures to address toxic threats, including by banning or prohibiting the use of pesticides and chemicals of significant concern. Even where such domestic measures have been taken, domestic legislation does not prohibit the export of substances deemed harmful in the country of production. This means that countries continue to allow companies to manufacture and export banned or unapproved pesticides for use in other parts of the world, posing a threat to humans and the environment, violating human rights, and contributing to global chemical risks.

    The impact of exported pesticides has no borders, resulting in risks for both importing and exporting countries: When locally banned or unapproved pesticides are exported, they are used in crops abroad. In turn, food containing residue from those banned pesticides is often reimported back to the same countries that allowed the pesticides’ production for export, creating a poison boomerang.

    High-Income Countries Knowingly Export Toxic Substances to Low- and Middle-Income Countries

    According to Pesticide Action Network (PAN), countries have banned more than 500 pesticide ingredients or groups of active ingredients that are still in use in the global market. The EU is the most protective regulator in its domestic market, but it is still shipping its banned pesticides abroad.

    This problematic double standard allows high-income countries to profit from their unwanted substances as companies export them to countries that often have less stringent protective regulations and technical capacity to handle hazardous substances. In importing countries, communities, farmers, and workers are regularly exposed to chemicals that are known to be toxic.

    Impacted Countries Rely on Regional Agreements to Push Back Against Harmful Imports

    Low- and middle-income countries have been at the receiving end of hazardous chemicals, pesticides, and e-waste exports from high-income countries for decades, with severe impacts on human health, ecosystems, and the economy. International efforts to regulate the trade of hazardous waste, such as the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal (Basel Convention), have not sufficiently protected all countries from these impacts.

    African countries have resolved to change this, developing a dedicated regional convention the Bamako Convention on the Ban of the Import into Africa and the Control of Transboundary Movement and Management of Hazardous Wastes within Africa (Bamako Convention) to prohibit the import of hazardous waste. Similarly, Central American countries have adopted a dedicated instrument the Central American Regional Agreement on the Transboundary Movement of Hazardous Waste (Central American Agreement) to ban the import of hazardous waste. Each of these regional instruments considers substances that are banned or unapproved in their country of production as hazardous waste.

    However, until a global ban on the production of these hazardous pesticides is adopted, pesticide companies will continue to take advantage of the weakest local legislation to continue producing, exporting, and profiting from the sale of prohibited pesticides. This is of particular concern for Asian, African, Latin American, and Caribbean countries.

    States Exporting Banned Pesticides Are in Breach of International Obligations

    The EU is considered a standard-bearer in global chemicals legislation, and many countries that receive the EUs pesticide exports are Parties to the Bamako Convention or the Central American Agreement, which provide specific mechanisms for countries to protect themselves from unwanted imports in conjunction with the Basel Convention.

    CIEL has analyzed the legal obligations laid out in the Bamako Convention, the Central American Agreement, and the Basel Convention to determine the legality of European exports of banned or unapproved pesticides to countries protected by these agreements.

    Our analysis concludes that any States Party to the Basel Convention that export banned pesticides are violating numerous obligations under regional and international treaties and under international human rights law.

    1. Violations under the Bamako Convention in Africa and the Central American Agreement: Under the Bamako Convention and the Central American Agreement, pesticides that are banned or unapproved in the country of production are considered hazardous wastes. Because these pesticides are hazardous waste under the Bamako Convention and the Central American Agreement, their import is banned in the territories of the Bamako and Central American Agreement Parties.
    2. Violations under the Basel Convention: Article 1.1.b. of the Basel Convention refers to hazardous wastes as defined by the domestic legislation of the Party of import. Domestic legislation in analyzed countries, including Angola, Benin, Burkina Faso, Cameroon, Costa Rica, Cte d’Ivoire, Egypt, Ethiopia, Guatemala, Mali, Morocco, Nicaragua, Panama, Senegal, Sudan, Tanzania, Tunisia, and Togo, considers banned or unapproved pesticides to be hazardous wastes. Therefore, exports of these pesticides to these Basel Parties violate the Basel Conventions general prohibition of exporting hazardous waste (as defined by the domestic legislation of the Party of import).
    3. Obligations of exporting States: European States, as well as any other States that are Parties to the Basel Convention, have a legal obligation to ban the export of banned or unapproved pesticides to countries where the Bamako Convention or the Central American Agreement definition of hazardous wastes is part of the domestic legislation (e.g., in Angola, Benin, Burkina Faso, Cameroon, Costa Rica, Cte d’Ivoire, Egypt, Ethiopia, Guatemala, Mali, Morocco, Nicaragua, Panama, Senegal, Sudan, Tanzania, Tunisia, and Togo).
    4. Obligations under international human rights law: There is ample knowledge that pesticides are detrimental to health and the environment. The failure by States to ban the export of banned or unapproved pesticides impairs the right to health in the importing States, and it, therefore, constitutes a breach by exporting States of their international human rights obligations.
    The Status of Banned Pesticide Exports in African Nations
    Banned Pesticides Central America
    The Status of Banned Pesticide Exports in Central American Nations

    Action Must Be Taken to End the Export of Banned Pesticides

    By producing and exporting banned and unapproved pesticides, Parties to the Basel Convention are in breach of their international obligations under the Basel Convention, customary law, and human rights law. They have a legal obligation to completely and immediately ban all exports of these hazardous chemicals and end this illegal and dangerous trade.

    This analysis also extends to regions and substances beyond banned pesticides from Europe. The Bamako Convention and Central American Agreement ban on hazardous wastes includes all substances banned in the country of manufacture and therefore applies to banned chemicals. And Parties to the Basel Convention, like Canada, China, or Russia, are in breach of their international obligations if they export banned substances to Parties to the Bamako Convention in Africa or to Parties to the Central American Agreement that have incorporated the definition of hazardous waste above into their national legislation.

    Considering these conclusions, it is clear that action must be taken to end the export of banned or unapproved pesticides and protect human rights and human health. The EU has already committed to banning these exports, and now it is time to act on this commitment and set a standard for the rest of the world to follow.

    This post is an adapted summary of this legal analysis.

    Published March 30th, 2023

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