Rotterdam Convention on Hazardous Chemicals: A Meaningful Step Toward Environmental Protection?, The

Georgetown International Environmental Law Review, Summer 2004 by Barrios, Paula

1. INTRODUCTION

During the last three decades, the production of chemicals increased spectacularly. ' Realizing that some of these substances pose serious threats to the environment and to human health, governments in most industrialized countries promulgated strict regulations dealing with their registration, testing, production, distribution and sale,2 and several hazardous chemicals were banned or severely restricted for domestic use. At the same time, regulations were silent or lenient with regard to exports, allowing these substances to be sent abroad.

Developing countries have been and continue to be a favored destination of hazardous chemicals, since they are less aware of the risks involved and they often depend on them to earn foreign currencies or to control vector-borne diseases. These countries usually lack appropriate environmental regulations to deal with hazardous chemicals, and when these regulations exist there is very limited capacity to enforce them. Developing countries also generally lack the ability and the infrastructure to handle these materials in an environmentally sound manner (i.e., in a way that protects the environment and human health from their negative effects). The consequences of these exports should thus come as no surprise. The most alarming figures involve the use of hazardous pesticides by farmers in the South.3 Reviews of hospital data from the World Health Organization (WHO) indicate that there are about one million accidental poisonings and twenty thousand deaths due to pesticides every year, primarily in developing countries, and agricultural surveys suggest that there could be as many as twenty-five million agricultural workers in the developing world suffering from an episode of pesticide poisoning every year. In addition, there is evidence that pesticides banned in developed countries sometimes return to them in the form of residues in food imported from the developing world. This phenomenon is known as the "circle of poison."4

These and other problems prompted a global response to deal with trade in hazardous chemicals between developed and developing countries in the late 1980s. The initial reaction of states was to adopt two voluntary instruments that created a system of information exchange on hazardous chemicals and pesticides. They are the International Code of Conduct on the Distribution and Use of Pesticides, adopted in 1985,5 and the London Guidelines for the Exchange of Information on Chemicals in International Trade, adopted in 1987.6 In 1989, the prior informed consent (PIC) procedure was introduced into both instruments in order to give importing countries the opportunity to refuse future imports of a number of certain hazardous chemicals banned or severely restricted (i.e., banned for virtually all uses) in other countries.7 In 1998, the PIC system was transformed into a legally binding procedure, with the adoption of the Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade. The treaty entered into force on February 24, 2004.8 Between this date and the adoption of the Convention, the voluntary system continued to operate on an interim basis after undergoing some adjustments that aligned it with the treaty's provisions.9

The purpose of this article is to undertake a critical evaluation of the Rotterdam Convention. Its central argument is that the treaty is fundamentally flawed and cannot adequately respond to the problems and challenges it is intended to address. This is not only because it virtually replicates the voluntary PIC system without introducing much needed provisions on testing, management and production of chemicals, but also because it does not feature some of the essential elements upon which a successful PIC system depends. Most notably, it reflects the mistaken assumption that information will by itself improve the capacity of developing countries to implement its provisions. Instead, experience gained from the voluntary system reveals that enhancing the ability of these countries to analyze chemical data, to test chemicals under their own conditions, to document and report poisoning incidents, and generally to safely manage hazardous chemicals, is essential for the successful implementation of the PIC procedure.

The article is divided as follows: Part II briefly outlines the problems that created the need for a convention on hazardous chemicals, including the effects of some chemicals on the environment and human health, and the global pesticides market. Part III presents an overview of the context in which the export of hazardous chemicals from developed to developing countries takes place. Part IV provides a critical evaluation of the Rotterdam Convention, considering the treaty's basis, origins, negotiations, and main provisions. Lastly, Part V considers the ways in which the PIC system could be enhanced so that it may contribute to the protection of the environment and human health from hazardous chemicals and pesticides. However, it suggests that a system of prior informed consent might not be the most appropriate method to address the problems pertaining to these substances.