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11 Jun 2018

Carolijn Terwindt & Christian Schliemann, European Centre for Constitutional and Human Rights

Why a binding treaty is necessary: the UN complaint mechanism's lack of teeth on pesticides management

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The sale and use of hazardous pesticides negatively affects farmers, plantation workers and their communities around the world. All too often, pesticides are sold without adequate labels, available protective clothing, and proper training of the farmers and dealers. For this reason, in 1985, the Food and Agriculture Organization (FAO) adopted the International Code of Conduct on Pesticide Management. One specific concern was the inability of some countries to effectively implement their regulations. This in turn led to a number of provisions requiring companies and pesticides-exporting states to be extra diligent in such contexts including a call upon companies to withdraw their products from those markets where the people do not use the pesticides according to the safety requirements. 

The cotton belt in Punjab in India is one of those places, as was brought to public attention in October 2015 in a so-called ad-hoc monitoring report (“the Report”). The Report was submitted to the complaint procedure of the FAO and World Health Organization (WHO). A video containing farmers’ testimonies was submitted as additional evidence. 

The Report focused on agribusiness companies Bayer CropScience AG (headquartered in Germany) and Syngenta AG (Switzerland) as they have the largest market share in the Punjab and agreed to abide by the International Code of Conduct. The matter was considered at the FAO/WHO Joint Meeting on Pesticides Management (JMPM) in April 2017 in New Delhi. In November 2017, they finally published their recommendations

Farmers wearing short-sleeved and thin cotton garments and without eye protection or gloves are spraying pesticides. They also spray in different directions, creating hazardous drift. 

The International Code of Conduct is the only global instrument for the management of pesticides, including explicit responsibilities for corporations. The Report illustrates an endemic problem in many countries that is not being adequately addressed. It thus offered the JMPM a unique chance to push for fuller adherence to the Code. The JMPM, however, failed to provide any specific recommendations for remedial business behaviour (e.g. what to do with inadequately labelled pesticides bottles?) or even determine whether the identified business practices of Bayer and Syngenta in the Punjab violated the Code. The JMPM also avoided to determine whether the situation in Punjab warrants that products be taken off the market as foreseen by Art. 5.2.5 of the Code when “handling or use pose an unacceptable risk under any use directions or restrictions.” Apparently, the FAO and WHO only see themselves as a kind of talking club, as they essentially only promoted “further multi-stakeholder dialogue”  and even failed to put in place a follow-up mechanism, thus allowing the problematic marketing practices to continue unabated.  

The consequences of the irresponsible sale and use of pesticides in the Punjab can be grave. Academic research indicates that Punjabi pesticides sprayers experience a variety of symptoms that coincide with the acute toxic effects of pesticides, such as skin rashes, discoloured nails or nails dropping off, nausea and eye itchiness, blurred vision and dizziness. In 2008, an epidemiological study reported a possible link between the high prevalence of local cancer rates and exposure to chemical pesticides. A 2013 door-to-door survey by the Government of Punjab further revealed that there are 90 cancer patients for every 100,000 people in Punjab, which is above the national average, and cancer prevalence is highest in the cotton belt. 

There have been two criminal complaints filed in both India and Germany regarding the failure to provide adequate information to the users of these poisonous products. Yet these were not taken up by the authorities. 

Left: Extract from the Nativo 75WG label authorised for sale in the UK, including the warning “suspected of damaging the unborn child”; Right: Photograph of Nativo 75WG package bought in Punjab, without hazard phrase. 

Given the failing of these enforcement mechanisms, the complaint procedure at the United Nations has an important role to play. It failed to live up to the task. For one, few local organisations are aware of the Code and even fewer know about the possibility to submit reports. Yet, it is precisely those local organisations that possess first-hand information on the reality in the fields and on plantations. In addition, ECCHR and its partners never received a publicly available, procedural guideline with a pre-set time frame and explanation of each stage of the process. Moreover, the requirement of accreditation complicated the attendance of the JMPM. Finally, the official recommendations were published more than two years after submission, significantly delaying an effective response to the problems raised in the Report. 

Without improvements, the FAO/WHO monitoring procedure is on its way to becoming meaningless. It can only be a useful tool if it actually advances compliance with the Code. The submitting organisations raised this concern in an open letter to the FAO/WHO. Principle 31 of the UN Guiding Principles on Business and Human Rights sets out that a non-judicial grievance mechanism should be legitimate, accessible, predictable, transparent, and rights compatible. None of these requirements are currently fulfilled at the FAO/WHO. In their reply to the open letter, the FAO/WHO presented the monitoring body as “an expert panel providing technical advice and guidance to FAO and WHO on pesticide management.” The UN thereby deliberately downgraded its own monitoring mechanism to an advisory body for technical questions, despite the Code and accompanying “Guideline on Monitoring Activities” allowing for the JMPM to play a much greater role. 

In sum, there is a strong and issue-specific International Code of Conduct, explicitly supported by states and companies, with a monitoring body and a complaint mechanism. But due to a lack of will in the implementation it is failing farmers, plantation workers, and their communities around the world. If even the UN fails to pursue its own objective to assess whether business respect human rights, who else will, except where binding rules so mandate? Only last year the UN Special Rapporteurs on the right to food and on hazardous substances advocated for a binding treaty on agribusiness including provisions directly addressing companies. The failing FAO/WHO complaint mechanism is a reminder of the failure of voluntary mechanisms and the need for a binding treaty on business and human rights.