“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..!
Background:
The Stockholm Convention is the most trade restrictive multilateral agreement
in the field of chemicals existing in the era of the WTO (World Trade Organization).

World exports of chemicals reached $1705 billion in 2008. The Europe has the
lion’s share of close to 60%. The US comes distant second with 11% share.
Year World exports of Of this ,exports Share of
Chemicals ($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. Industry
observers feel that to run around the strict WTO rules, the Europe is increasingly
using the Stockholm Convention to apply trade restrictive measures on certain high
volume, low priced generic chemicals manufactured outside the Europe. Eliminating
the use of generic chemicals and pesticides helps in sustaining the Europe’s
supremacy in the chemical trade.
It is relevant to note that over 90% of the chemicals reported to the Stockholm
Convention for their ban are initiated by the European Union/Europe. All of these
are low-priced generic chemicals not manufactured within the EU at present.
This report chronicles how the POP Review Committee (POPRC) often fails to operate
in line with its own rules of procedure and the text of Stockholm Convention, under
pressure from the Europe. This will be illustrated using the recent example of how
the European Union’s (EU) proposal on the pesticide Endosulfan at the Stockholm
Convention was dealt with by the POPRC.
Endosulfan ranks among the top ten insecticides used the world. Its current
consumption in the world is estimated to be 45 million litres per year. Besides
being used as an agricultural insecticide, it is also used as a veterinary insecticide
in the US. Until 2006, the EU was the largest producer and exporter of Endosulfan
in the world. Its production in the EU ceased in 2006 reportedly due to commercial
reasons. The next year, i.e. in 2007, the EU notified Endosulfan for inclusion in
Stockholm Convention. It is no secret that eliminating production and use of
Endosulfan through the Stockholm Convention would bring huge economic gains
to 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. For
the 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 the
proposal concerning Endosulfan. But he subsequently sought postponement of its
review by a year after brief consultations with the Chair of POPRC.
The text and rules of the Stockholm Convention do not empower a POPRC member
to be the spokesperson for the notifying party. They do not allow delaying the review
from one POPRC to another either. Therefore, the demand made by Dr. Tarazona
was 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 the
POPRC did not reject the demand from Dr.Tarazona, but hastily agreed to it. This
episode showed strong bias and favoritism to the EU inherently present at the POPRC.
Dr. Tarazona repeated his objectionable and questionable role at the next POPRC
too.
Dr. Tarazona attended POPRC-4 (Oct, 2008) as an “observer” as his term as a
POPRC 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 members
at the POPRC-4 much to the surprise of many. As per the Convention, observers can
not officially initiate and lead the scientific review.
For over three hours Dr. Tarazona was misusing his position and guiding the new
POPRC-4 members into a preconceived line of decision tailor-made to serve the
interests of the EU. He planted a lot of prejudice in the minds of POPRC members
even before they began their formal review of the EU’s proposal. The audio recordings
of 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 had
no rights to officially present the EU proposal before new POPRC members. He
brazenly breached the terms concerning conflict of interests applicable to POPRC
members 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 proposal
was orally made by Dr. Tarazona (a POPRC member from the EU), it was recorded in
the 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 expose
the suppressed truth.

The assigned reason for the postponement was that “vital information” was missing
in the EU’s proposal. If “vital information” was indeed missing, the proposal should
have 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”. This
was false and misleading. The POPRC-3 did not consider the proposal as it was never
introduced at its meeting.

Reason No. 3 – Amendment of the proposal after submission

Neither the text nor the rules of procedure governing the Stockholm Convention
permit amending the proposal by the notifying party after it has been formally
submitted 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 India
submitted 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 the
EU’s proposal (that had not been tabled and examined at the POPRC-3) could be
considered by the POPRC-4. Encouraged by the EU, the majority of the POPRC
members favoured consideration of the EU proposal.
It is submitted that the Chair of the POPRC has no rights to resort to voting to
grant himself powers to do things that are not prescribed and permitted under the
Convention. This set a bad precedence and if not checked, might open a Pandora’s
Box in future with a plethora of unintended and undesirable consequences.
Reason No. 4 – Notifying party cannot submit its own evaluation
report to the POPRC members
At the POPRC-4, a drafting group was formed to do preliminary evaluation of
the EU proposal against Annex D criteria and to prepare a draft report for final
consideration by POPRC members. An EU member openly supplied to this group a
pre-drafted review of the EU’s proposal for adoption by POPRC-4. This showed that
the EU had sent its POPRC members to the meeting with a self generated review on
its own proposal.
One question that should be asked by everyone is : On what basis can the EU be
allowed the special and nonexistent privilage to submit review of its own proposal
to the POPRC?
Objecting to this questionable practice, the POPRC member from India in his
dissent note said:
“…… practice of allowing notifying party(EC/EU) to also submit a “pre drafted
review 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 to

apply consensus rule
The [amended] proposal of the EU concerning Endosulfan was still found to be
significantly 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 the
Chairman of POPRC.
Decision by POPRC members on the submitted proposal is scientific in nature
and is therefore legally qualified to be termed “substantive decision”. A substantive
decision is one that is decided following detailed hearing/debate/discussions wherein
scientific facts are contested, analyzed and investigated to finally produce a decision
of scientific and technical in nature.
Rule 45 of rules of procedures of the Stockholm Convention allows substantive
decisions be taken only by consensus.
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 Taking substantive decision by majority voting is a serious violation of the rules
of 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 under
review (for Annex-E review) is the responsibility of the POPRC. However, in case of
the EU proposal on Endosulfan, the draft risk profile was prepared and supplied to
the 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 services
of 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 members

as given in COP’s decision SC-1/8. Besides, it violates the procedures prescribed in
the text of the Convention for Annex E review.

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

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

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

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

Hiding the dissent note of a POPRC member is an unfair practice. It goes against
the 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 the
EU proposal concerning Endosulfan.

Following a discussion on this, the President of COP-4 advised the Secretariat to

address India’s concerns before it drew up next level of action plans on the EU
proposal. ‘A friend of the president’ (not yet nominated) and the senior legal officer
of the UNEP were to be involved in this exercise. This was expressly mentioned in
the 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 is
a serious omission.

POPRC-5, convened during Oct 2009 (i.e. nearly 6 months after COP-4) neither
discussed nor took cognizance of the concerns raised by India in its conference
room paper. Effectively, it also ignored the follow up action pending on India’s
paper .

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

It is clear that the Chairman of the POPRC repeatedly takes substantive decisions
by voting using non existing power and discretion – even while ignoring protests by
many 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 existing

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

The trade measures authorized by the Stockholm Convention are in fact identical
to the ones in the WTO’s technical regulations such as the Sanitary and Phytosanitary
Agreement (SPS Agreement) and the Technical Barrier to Trade agreement (TBT
Agreement). To be compatible with the WTO provisions applicable to SPS and TBT
Agreements, the decisions taken in the Stockholm Convention should have sufficient
scientific justification and should not be developed and applied arbitrarily or
unjustifiably discriminatorily or as disguised restriction under international
trade.

The trade measures taken in Stockholm Convention severely impact international

trade of the chemicals listed in the Convention and therefore such trade measures
cannot be developed and applied in clinical isolation of WTO principles applicable
to technical regulations.

Therefore, the scientific committee of the Stockholm Convention, (POPRC),

while following the text and rules of the Stockholm Convention, should also be
mindful of and guided by the WTO principles and norms governing SPS and TBT
Agreement.
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 As in case of the WTO’s SPS and TBT regulations, the decisions made by POPRC
must be based on existing international standards. There must be sufficient
scientific evidence for the decisions taken by the POPRC during the review. Annex
E review. POPRC’s decision concerning Endosulfan fails to meet these fundamental
requirements. For example, the environmrntal exposure levels adjudged by
POPRC-5 to cause “significant adverse effects” to humans and/or environment
are 10000 to 1000000 times less than the levels considered safe for Endosulfan
by 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 is

disguised restriction on its international trade and is not supported by sufficient
scientific evidence.

The POPRC Chairman did not allow any scientific debate or discussions on the
draft paper that was produced based on EU’s own (Dr. Tarazona’s) review at the
POPRC-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 voting
in a matter of 13 minutes on the final day of POPRC-5.

This type of arbitrary, biased discriminatory, unfair, faulty and deceitful decisions
cannot be allowed in the Stockholm Convention leading to development of
irreversible trade measures on globally traded chemicals.

In a significant decision on how to identify the risk and how the risk must be
evaluated, the WTO’s Appellate Body had in the dispute involving US and European
Community 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 and
ascertainable in the real world- and not merely theoretical, insignificant and
unascertainable.

Trade measures that severely impact international trade of chemicals cannot be

founded on theoretically weak and practically nonexistent risks. They can not be
decided 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 Parties
shall define the conditions for the disclosure of all relevant information…”
The COP could immediately consider appointing an independent and
professional auditing entity to review all the records, including audio records
of POPRC-3 to POPRC-5 concering discussions on Endosulfan.

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

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

All controversial decisions taken on the EU proposal concerning Endosulfan
must be reversed and declared invalid.

COP could also consider adopting essential elements from the Final Report of
the International Committee on the Accountability of International
Organizations adopted by the International Law association in 2004 for smooth
functioning of the POPRC with certain level of accountability. This
Accountability 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.

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 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