“Procedural justice is an essential pre-condition for substantive justice”(H.Nehl, 1999)

A Case Study

POPRC’s Decisions on the EU’s

Proposal Concerning Endosulfan

We solemnly declare and assert under the Stockholm Convention that....

We have the rights to submit a proposal

Supply a self-made review of our own proposal

Sit in judgment on the self-made review and

Finally deliver decisions..!

Under the Stockholm Convention

We are the alpha

We are the omega

We are the EU..!

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Background:

The Stockholm Convention is the most trade restrictive multilateral agreementin the field of chemicals existing in the era of the WTO (World Trade Organization).

World exports of chemicals reached $1705 billion in 2008. The Europe has thelion’s share of close to 60%. The US comes distant second with 11% share.

Year World exports of Of this ,exports Share ofChemicals ($bn) from Europe Europe (%)

2006 1248 743 60

2007 1483 883 60

2008 1705 993 58

Source: International Trade Statistics 2009(WTO)

In the world of trade and commerce, for every move there will be a motive. Industryobservers feel that to run around the strict WTO rules, the Europe is increasinglyusing the Stockholm Convention to apply trade restrictive measures on certain highvolume, low priced generic chemicals manufactured outside the Europe. Eliminatingthe use of generic chemicals and pesticides helps in sustaining the Europe’ssupremacy in the chemical trade.

It is relevant to note that over 90% of the chemicals reported to the StockholmConvention for their ban are initiated by the European Union/Europe. All of theseare low-priced generic chemicals not manufactured within the EU at present.

This report chronicles how the POP Review Committee (POPRC) often fails to operatein line with its own rules of procedure and the text of Stockholm Convention, underpressure from the Europe. This will be illustrated using the recent example of howthe European Union’s (EU) proposal on the pesticide Endosulfan at the StockholmConvention was dealt with by the POPRC.

Endosulfan ranks among the top ten insecticides used the world. Its currentconsumption in the world is estimated to be 45 million litres per year. Besidesbeing used as an agricultural insecticide, it is also used as a veterinary insecticidein the US. Until 2006, the EU was the largest producer and exporter of Endosulfanin the world. Its production in the EU ceased in 2006 reportedly due to commercialreasons. The next year, i.e. in 2007, the EU notified Endosulfan for inclusion inStockholm Convention. It is no secret that eliminating production and use ofEndosulfan through the Stockholm Convention would bring huge economic gainsto the EU, the world leader in pesticides production and trade.

The EU dominance in the POPRC decision-making process totally flouts the technical,procedural, transparency and ethical requirements of the Stockholm Convention. Forthe Convention to survive, the accountability and due process must be restored.

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Why the POPRC decision

regarding Endosulfan must be invalidated ?

Reason No.1 – Conflict of Interest. A POPRC member cannot be a

spokesperson for the notifying party

The expert review on the EU’s proposal concerning Endosulfan tabled at POPRC-3 (Nov, 2007) was postponed to POPRC-4 (Oct, 2008) as demanded by Dr. Tarazona,the POPRC member from the EU. In fact, it must also be mentioned that Dr. Tarazona-speaking on behalf of the EU- initially submitted that the EU wished to withdraw theproposal concerning Endosulfan. But he subsequently sought postponement of itsreview by a year after brief consultations with the Chair of POPRC.

The text and rules of the Stockholm Convention do not empower a POPRC memberto be the spokesperson for the notifying party. They do not allow delaying the reviewfrom one POPRC to another either. Therefore, the demand made by Dr. Tarazonawas thoroughly illegitimate.

The notifying party in this case was the EU. The POPRC member (Dr. Tarazona)who made the demand was also from the EU.

This is a clear case of procedural abuse. Rather surprisingly, the Chairman of thePOPRC did not reject the demand from Dr.Tarazona, but hastily agreed to it. Thisepisode showed strong bias and favoritism to the EU inherently present at the POPRC.

Dr. Tarazona repeated his objectionable and questionable role at the next POPRCtoo.

Dr. Tarazona attended POPRC-4 (Oct, 2008) as an “observer” as his term as aPOPRC member had expired in May 2008. But he was the one who “officially”presented the Endosulfan proposal on behalf of the EU to the new POPRC membersat the POPRC-4 much to the surprise of many. As per the Convention, observers cannot officially initiate and lead the scientific review.

For over three hours Dr. Tarazona was misusing his position and guiding the newPOPRC-4 members into a preconceived line of decision tailor-made to serve theinterests of the EU. He planted a lot of prejudice in the minds of POPRC memberseven before they began their formal review of the EU’s proposal. The audio recordingsof the POPRC-4 proceedings would give full details of this sordid episode.

As an ex-POPRC member and as an “observer” at the POPRC-4, Dr. Tarazona hadno rights to officially present the EU proposal before new POPRC members. Hebrazenly breached the terms concerning conflict of interests applicable to POPRCmembers as given in COP’s decision SC-1/8.

Reason No. 2 – Suppression of facts. Auditing of records required

Though, the demand to delay and postpone the POPRC review of the EU proposalwas orally made by Dr. Tarazona (a POPRC member from the EU), it was recorded inthe final report of POPRC-3 as if this demand came from the entire POPRC-3.

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An independent audit of the audio recordings of POPRC-3 proceedings would exposethe suppressed truth.

The assigned reason for the postponement was that “vital information” was missingin the EU’s proposal. If “vital information” was indeed missing, the proposal shouldhave been set aside by the POPRC-3 as per Article 8 of the Convention.

The web page of the POPRC in the meantime claimed that “At its third meeting,

the committee considered the proposal submitted by European Community”. Thiswas false and misleading. The POPRC-3 did not consider the proposal as it was neverintroduced at its meeting.

Reason No. 3 – Amendment of the proposal after submission

Neither the text nor the rules of procedure governing the Stockholm Conventionpermit amending the proposal by the notifying party after it has been formallysubmitted to the Secretariat.

But the Secretariat and the POPRC Chairman allowed the EU, the notifying party,to amend the proposal between POPRC 3 in 2007 and POPRC 4 in 2008.

This is a serious contravention. At the POPRC-4 (Oct 2008) China and Indiasubmitted a Conference Room paper against admissibility of the carried forward(and amended) proposal of the EU. The Conference Room Paper (UNEP/POPs/POPRC-4/ CRP-3) tabled by China and India stated that:

At the last POPRC meeting held in Nov 2007, European Commission’s proposal

and dossier on Endosulfan was not introduced though it was listed in POPRC-3

agenda….., the POPRC-3 did not examine/evaluate the EU proposal under Annex D

of the Convention….The… proposal is now listed once again in the agenda for POPRC-

4.

…..Article 8 of the Convention does not permit extension of the validity of a

submitted proposal from one POPRC to the next without it being actually introduced

at the meeting of POPRC and evaluated by the members of the POPRC towards a

definite decision….

…. according to Article 8 of the Convention, [POPRC] is only empowered to take

one of the following two decisions on a submitted proposal:

a) If it is satisfied that the screening criteria are fulfilled, it must make the proposal

and is evaluation available to all Parties and observers and invite them to submit

the information specified in annex E to the Convention; or

b) If it is not satisfied that the screening criteria have been fulfilled, it must set

aside the proposal.

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Ignoring this protest note, the POPRC Chair resorted to voting to decide if theEU’s proposal (that had not been tabled and examined at the POPRC-3) could beconsidered by the POPRC-4. Encouraged by the EU, the majority of the POPRCmembers favoured consideration of the EU proposal.

It is submitted that the Chair of the POPRC has no rights to resort to voting togrant himself powers to do things that are not prescribed and permitted under theConvention. This set a bad precedence and if not checked, might open a Pandora’sBox in future with a plethora of unintended and undesirable consequences.

Reason No. 4 – Notifying party cannot submit its own evaluationreport to the POPRC members

At the POPRC-4, a drafting group was formed to do preliminary evaluation ofthe EU proposal against Annex D criteria and to prepare a draft report for finalconsideration by POPRC members. An EU member openly supplied to this group apre-drafted review of the EU’s proposal for adoption by POPRC-4. This showed thatthe EU had sent its POPRC members to the meeting with a self generated review onits own proposal.

One question that should be asked by everyone is : On what basis can the EU beallowed the special and nonexistent privilage to submit review of its own proposalto the POPRC?

Objecting to this questionable practice, the POPRC member from India in hisdissent note said:

“…… practice of allowing notifying party(EC/EU) to also submit a “pre draftedreview of its own proposal” to POPRC to guide the discussions…. is both unfair

and unlawful in a multilateral convention as it goes against the principle of equity

and justice…. Stockholm Convention cannot allow this”.

Reason No. 5 – Failure to meet Annex D requirements and failure toapply consensus rule

The [amended] proposal of the EU concerning Endosulfan was still found to besignificantly failing to meet the Annex-D requirements of the Stockholm Convention.Many POPRC members observed this during the course of the review at the POPRC-4.

Ignoring such observations, the decision to pass the EU proposal through Annex-D review was, however, taken by majority voting instead of consensus by theChairman of POPRC.

Decision by POPRC members on the submitted proposal is scientific in natureand is therefore legally qualified to be termed “substantive decision”. A substantivedecision is one that is decided following detailed hearing/debate/discussions whereinscientific facts are contested, analyzed and investigated to finally produce a decisionof scientific and technical in nature.

Rule 45 of rules of procedures of the Stockholm Convention allows substantivedecisions be taken only by consensus.

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Taking substantive decision by majority voting is a serious violation of the rulesof procedure which is binding upon the POPRC.

Reason No. 6 – Preparing Annex E risk profile by the notifying party (EU)

Post-Annex D review, preparing the draft risk profile for the chemical underreview (for Annex-E review) is the responsibility of the POPRC. However, in case ofthe EU proposal on Endosulfan, the draft risk profile was prepared and supplied tothe POPRC by the European Commission using the services of an ex POPRC member-Dr. Tarazona. He prepared the risk profile on contract, for a fee using the servicesof his own family owned firm M/s Green Planet Environmental Consulting SL, Madrid,Spain.

This is in gross violation of the conflict of interests applicable to POPRC membersas given in COP’s decision SC-1/8. Besides, it violates the procedures prescribed inthe text of the Convention for Annex E review.

It should be reiterated that both during the Annex D review and during the AnnexE review, it was the EU that prepared the review reports for adoption (by majorityvoting) by the POPRC.

So, the notifying party and the reviewing party were in reality the same. This isthoroughly objectionable.

Reason No. 7 – Failure to make public the dissent note of POPRCmember

The POPRC member from India submitted a dissent note at the POPRC-4 againstthe way the decision was taken on the EU proposal and excesses committed by themembers from the EU. However, this dissent note was not made public by theSecretariat and by the Chairman of POPRC.

Hiding the dissent note of a POPRC member is an unfair practice. It goes againstthe spirit of transparency. It violates rule 33 of COP’s decision SC-1/7.

Reason No. 8 – Ignoring India’s Conference Room Paper

At the COP-4 (May 2009) India submitted a conference room paper (UNEP/POPs/COP.4/CRP.4) questioning the decisions made at POPRC-3 and at POPRC-4 on theEU proposal concerning Endosulfan.

Following a discussion on this, the President of COP-4 advised the Secretariat toaddress India’s concerns before it drew up next level of action plans on the EUproposal. ‘A friend of the president’ (not yet nominated) and the senior legal officerof the UNEP were to be involved in this exercise. This was expressly mentioned inthe paragraph 106 and 107 of the final report adopted at the COP-4.

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The Secretariat and the Chair of POPRC have failed to follow up on this. This isa serious omission.

POPRC-5, convened during Oct 2009 (i.e. nearly 6 months after COP-4) neitherdiscussed nor took cognizance of the concerns raised by India in its conferenceroom paper. Effectively, it also ignored the follow up action pending on India’spaper .

Besides, the Chair of POPRC pushed the impugned EU proposal once again throughAnnex-E review by majority voting (and not by consensus as required). ManyPOPRC members abstained from voting as a mark of protest.

It is clear that the Chairman of the POPRC repeatedly takes substantive decisionsby voting using non existing power and discretion – even while ignoring protests bymany POPRC members and members of the COP,

This must be probed, questioned and his controversial decisions must be reversed.

Reason No. 9 - WTO relevance and the need to consider existinginternational standards

As mentioned earlier, the Stockholm Convention is the most trade restrictivemultilateral agreement for chemicals in the era of WTO. The Convention authorizestrade measures (such as product bans, phase-out and export /import restrictions)if residues of a chemical arising from its long range environmental transport arescientifically shown to cause “significant adverse effects” to human health and/or environment.

The trade measures authorized by the Stockholm Convention are in fact identicalto the ones in the WTO’s technical regulations such as the Sanitary and PhytosanitaryAgreement (SPS Agreement) and the Technical Barrier to Trade agreement (TBTAgreement). To be compatible with the WTO provisions applicable to SPS and TBTAgreements, the decisions taken in the Stockholm Convention should have sufficientscientific justification and should not be developed and applied arbitrarily orunjustifiably discriminatorily or as disguised restriction under internationaltrade.

The trade measures taken in Stockholm Convention severely impact internationaltrade of the chemicals listed in the Convention and therefore such trade measurescannot be developed and applied in clinical isolation of WTO principles applicableto technical regulations.

Therefore, the scientific committee of the Stockholm Convention, (POPRC),while following the text and rules of the Stockholm Convention, should also bemindful of and guided by the WTO principles and norms governing SPS and TBTAgreement.

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As in case of the WTO’s SPS and TBT regulations, the decisions made by POPRCmust be based on existing international standards. There must be sufficientscientific evidence for the decisions taken by the POPRC during the review. AnnexE review. POPRC’s decision concerning Endosulfan fails to meet these fundamentalrequirements. For example, the environmrntal exposure levels adjudged byPOPRC-5 to cause “significant adverse effects” to humans and/or environmentare 10000 to 1000000 times less than the levels considered safe for Endosulfanby WHO/FAO experts and several national regulatory authorities..In other words,the decision taken by POPRC goes contrary to the existing international standards.

The decision by the POPRC is arbitrary, unjustifiably discriminatory and isdisguised restriction on its international trade and is not supported by sufficientscientific evidence.

The POPRC Chairman did not allow any scientific debate or discussions on thedraft paper that was produced based on EU’s own (Dr. Tarazona’s) review at thePOPRC-5. Disallowing any scientific discussions, and disallowing all voices of dissent,the decision that “EU’s proposal met Annex E criteria” was taken by majority votingin a matter of 13 minutes on the final day of POPRC-5.

This type of arbitrary, biased discriminatory, unfair, faulty and deceitful decisionscannot be allowed in the Stockholm Convention leading to development ofirreversible trade measures on globally traded chemicals.

In a significant decision on how to identify the risk and how the risk must beevaluated, the WTO’s Appellate Body had in the dispute involving US and EuropeanCommunity in the EC Measures Concerning Meat and Meat products (Hormone case)observed :

“… the risk that is to be evaluated…. is not only risk ascertainable in a science

laboratory operating under strictly controlled conditions, but also risks in human

societies as they actually exist ..”

“… 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…”

Similarly, therefore, the risks and consequent “significant adverse effects”evaluated under Stockholm Convention must be practically significant andascertainable in the real world- and not merely theoretical, insignificant andunascertainable.

Trade measures that severely impact international trade of chemicals cannot befounded on theoretically weak and practically nonexistent risks. They can not bedecided without debate in 13 minutes!

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Suggested Corrective Actions:

� According to Rule 7(h) in COP Decision SC-1/8). “Where the objectivity of a

particular meeting has been called into question, the Conference of Partiesshall define the conditions for the disclosure of all relevant information…”

The COP could immediately consider appointing an independent andprofessional auditing entity to review all the records, including audio recordsof POPRC-3 to POPRC-5 concering discussions on Endosulfan.

� Those who will be found to have flouted and infringed the text of theConvention, its rules of procedure, accountability, including transparency anddue process must be removed from being associated with the implementationof the Convention.

� Suitable action must be initiated against the POPRC member from the EU whoviolated the conflict of interests terms.

� All controversial decisions taken on the EU proposal concerning Endosulfanmust be reversed and declared invalid.

� COP could also consider adopting essential elements from the Final Report ofthe International Committee on the Accountability of InternationalOrganizations adopted by the International Law association in 2004 for smoothfunctioning of the POPRC with certain level of accountability. ThisAccountability Report also addresses the issue of remedies in case of non-compliance with the applicable recommended rules and practices.

� Most importantly, the hegemony of the Europe must be checked.

For further information, contact:

S. Ganesan

Chairman

International Treaties Expert Committee

Indian Chemical Council, INDIA

Tel: +91 99595 52725

E-mail: tsganesan@rediffmail.com

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 many policy advocacy

papers concerning global chemical conventions.

Justice is not fairness of outcome; but

fairness of procedure in arriving at the outcome

- Anonymous

For further information, contact:

S. Ganesan

Chairman

International Treaties Expert Committee

Indian Chemical Council, INDIA

Tel: +91 99595 52725

E-mail: tsganesan@rediffmail.com