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

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

3. The Justification of Export Double Standards

In its 1993 Pesticide Export Policy (which clarifies the FIFRA), the U.S. Environmental Protection Agency (EPA) provided four arguments to justify the export of unregistered pesticides (banned or never registered) to other countries.118 First, the United States is only one exporter in the market and its unilateral prohibition of certain exports would not stop the use of such products in other countries. second, it may be more effective to concentrate on the safe management of all pesticides rather than on banning certain U.S.-produced pesticides from international trade. Third, the fact that a pesticide is not registered in the United States may give little indication of whether it would also impose a serious health or environmental threat when used in other countries, as the EPA's regulatory decisions are based upon risk/benefit analysis specific to the United States. Lastly, some pesticide producers may not want to register their product in the United States simply because it is meant to be used in other country and it would not be useful in the domestic market (e.g., it may control a pest that is not a problem in the United States).119

As pointed out by Michael Holley, these considerations would be reasonable if all countries had a similar capacity to evaluate the risks posed by a pesticide,120 and if there was access to safer chemical or non-chemical alternatives to the substance being exported. However, developing countries generally have very limited capacity to make the comprehensive risk-analysis evaluations required and to ensure the safe use and disposal of the imported substances, and they often cannot afford safer alternatives. One should probably distinguish between pesticides that have been banned to protect human health and the environment, and pesticides that have never been registered for use in the exporting country. In the first case, export should not take place, as a matter of principle. If a substance is too hazardous to be used in the North, it is almost certain that it will be at least equally harmful when used in the South. The very fact that the great majority of pesticide poisonings occur in developing countries even though more pesticides are used in the North supports this assertion. In relation to pesticides never registered for use in the exporting country, one could accept that in some cases producers may not want to register their product simply because it is not useful domestically. However, this should not exempt the producer from the responsibility of properly testing its product so that it does not pose unreasonable risks to human health or the environment elsewhere. A complete risk analysis should be still carried out, taking into account the physical and environmental conditions of the country where the product will be used. This view is reflected in the FAO Code of Conduct, which requires pesticide manufacturers to "[e]nsure that each pesticide and pesticide product is adequately and effectively tested by recognized procedures and test methods so as to fully evaluate its efficacy, behaviour, fate, hazard, and risk with regard to the various anticipated conditions in regions or countries of use."121