1. Introduction
Research on the nexus between pesticide regulation in the European Union (EU) and trade can be divided into various strands. For example, some scholars and think-tanks question the issue of double standards and ambiguities in the EU trade policy on pesticides, pointing out that while the EU bans the use of ‘bee-killing’ pesticides on its own landscapes, it continues to export significant amounts of these substances each year.Footnote 1 Additionally, EU Member States have been granting emergency authorizations that allow the continued use of neonicotinoids, despite the EU-level prohibition.Footnote 2 Another strand of research focuses on the displacement risks associated with EU-wide bans on specific pesticides, which could lead to an even ‘faster race towards new toxins’.Footnote 3 Further, given that these unilateral EU measures can have significant impacts abroad, some researchers have also argued for opening up the EU rule-making process to include potentially affected groups that depend on biodiversity and forest ecosystems. This broader stakeholder engagement is seen as key to achieve positive social–ecological outcomes.Footnote 4
While these are important issues, our emphasis in this article differs from these research strands. We focus on the lack of coherence between trade and human rights perspectives on pesticides. Specifically, we highlight the inclusiveness gap in the formulation of trade policy stances on pesticides in the context of the World Trade Organization (WTO). We discuss this issue by analyzing a high-profile case: EU restrictions on imports containing residues of neonicotinoids (neonics). Commission Regulation (EU) 2023/334 of 2 February 2023Footnote 5 foresees by 2026 the de facto ban of the import of products containing traces of two neonics prohibited in the EU – thiamethoxam and clothianidin – based on their toxicity on pollinators. EU trading partners, including several WTO members from Latin America (LA), have pushed back against the EU measure and its environmental rationale. The resulting debate has been highly divisive and polarising, and it has left parties in a stalemate that may develop into a trade dispute.Footnote 6 Between 16 November 2022 and 13 March 2024, a total of 20 countries raised or supported trade concerns against the EU trade restriction on imports containing neonics residues before the WTO Committee on Technical Barriers to Trade (TBT),Footnote 7 The majority of these countries (15 out of 20) are from the global south; most (10 of 15) were from LA: Argentina, Brazil, Chile, Colombia, Costa Rica, Ecuador, Guatemala, Paraguay, Peru, and Uruguay all raised trade concerns or supported the concerns raised.Footnote 8 Notably, each of these countries are all parties to the Convention on Biological Diversity (CBD).Footnote 9
Against this background, the present article aims to assess critically the positions taken by LA countries on the issue in the WTO context. Rather than evaluating the substance or strength of their trade policy arguments under WTO law, we will examine their trade concerns from an external perspective, focusing on human rights obligations and the inherent biases involved in the formulation of trade policies. This approach leads to the following questions. What are the main objections raised by the representatives of LA countries in the WTO context regarding the EU measure? To what extent are their trade concerns aligned with states’ human rights obligations to provide for a clean, healthy, and sustainable environment?
We focus on LA countries for several reasons. Firstly, they were the largest regional group that raised or supported trade concerns vis-à-vis the EU pesticide measure. Secondly, pesticide (over)use is a significant issue in the region. It is estimated that LA and Caribbean countries contribute to 20% of worldwide pesticide consumption, and the region uses more pesticides per person than other parts of the world.Footnote 10 Thirdly, LA is one of the most biologically and culturally diverse regions globally.Footnote 11 Fourthly, there is a contradiction between the position of the LA governments on pesticides in the WTO context and their commitments and pledges under human rights and environmental law, including the Regional Agreement on Access to Information, Public Participation and Access to Justice in Environmental Matters in Latin America and the Caribbean (Escazú Agreement).Footnote 12 Finally, LA is home to active civil society organizations, some of whom use legal means to promote sustainability and enact positive change.Footnote 13 Their potential role in promoting sustainability transitions deserves careful consideration.
Our hypothesis is that the policy debate before the WTO TBT Committee reflects a democratic deficit in preparing country positions and trade concerns, leading to a systemic bias against public interests and the environmental rule of law. This is important, inter alia, because the LA countries opposing the EU measure are also parties to the CBD and other international treaties that obligate them to address the drivers of biodiversity loss and ecosystem degradation.Footnote 14 Moreover, LA countries have increasingly entrenched environmental rights within their constitutions, in some cases recognizing ecosystems as rights-bearing entities.Footnote 15 If a genuine democratic deficit is indeed at work in trade policy formulation, there may be a need for transformative procedural mechanisms that favour more comprehensive consideration of broader societal and environmental interests, in line with biodiversity law and human rights law.
The remainder of the analysis proceeds as follows. Section 2 contextualizes the EU measure and clarifies some technical aspects of the debate. Section 3 briefly reviews the main objections raised by LA trade delegates before the WTO TBT Committee, as recorded in the reports of the TBT Committee meetings. Section 4 problematizes the trade policy stance of LA trade delegates on neonics. It does so by contrasting the views of LA WTO trade delegates with those of non-trade government entities and civil society actors in the same LA countries. Section 5 reflects on the disconnect between trade policy positions and human rights commitments regarding pesticides. Section 6 covers observations on broadening the trade policy debate on pesticides in ways that account more inclusively for societal interests and biodiversity stewardship. We conclude by summarizing the key arguments presented.
As concerns the methodology, we use distinct legal approaches in different sections of the article. In Section 3 on trade, we assess the positions of LA countries as expressed by their trade delegates before the WTO TBT Committee. These positions are recorded in the reports of the TBT Committee meetings, which we accessed using the WTO Trade Concerns Database from November 2022 to March 2024.Footnote 16
The legal analysis in Section 4 on human rights perspectives takes a more normative approach. Through a legal doctrine method and content analysis of selected legal and policy documents as well as scientific literature, we highlight the human rights issues associated with pesticide use in LA. We revisit the trade concerns raised in the light of these issues.
The analysis in Sections 5 and 6 is both normative and practice-oriented. We draw upon ‘systemic integration’ and ‘constitutional’ strands of thought in trade law, advocating greater institutional sensitivity in WTO law (and structures) on behalf of human rights and environmental law.Footnote 17 However, we go beyond these approaches by linking with ‘transition management’ theories and ‘sustainability transitions’ research.Footnote 18 Transposing selected ideas from transition management into the legal domain, we argue for procedural innovations that deliberately break up established actor-network structures in trade governance, thus creating windows of opportunity to scale alternatives up and out.Footnote 19 This line of reasoning is consistent with critical strands of thought in legal studies that argue for greater decentralization of political power and the legal empowerment of groups that are currently marginalized by ‘the cultural and intellectual hierarchies of the legal system’.Footnote 20
2. The EU Measure in Context
EU Commission Regulation (EU) 2023/334 has lowered the ‘maximum residue levels’ (MRLs) for clothianidin and thiamethoxam on imported products to the lowest detectable limit.Footnote 21 In practice, imported products will no longer be able to contain any detectable residues of these two substances unless ‘import tolerances’ are granted in specific circumstances.Footnote 22 An MRL is ‘the highest level of a pesticide residue that is legally tolerated in or on food or feed when pesticides are applied correctly’Footnote 23 – meaning, according to manufacturers’ instructions and under so-called good agricultural practices (GAP).
Clothianidin and thiamethoxam are synthetic pesticides.Footnote 24 More precisely, they are neonics,Footnote 25 a class of insecticides registered for use on field crops in over 120 different countries.Footnote 26 They are broad-spectrum, meaning they can harm a wide range of insects, including beneficial ones. Further, they are systemic, as they are transported throughout the plants – including pollen and nectar – unlike contact pesticides that remain on the surface of the treated plants.Footnote 27 One of the fastest-growing classes of insecticides worldwide, neonics are used mainly in agriculture as seed coatings to protect seedlings (seed treatment applications) and as foliar sprays on crops, pastures, and grasslands (foliar uses and soil treatment).Footnote 28
Substantial evidence points to neonics playing a role in the decline of bees and other pollinators worldwide.Footnote 29 Clothianidin and thiamethoxam, and neonics in general, are neurotoxic insecticides that permanently bind to insect nerve cells, overstimulating and destroying them, commonly causing uncontrollable shaking, paralysis, and death.Footnote 30
Besides their harm to pollinators, neonics pose a significant risk to surface waters and the diverse aquatic and terrestrial fauna that depend on these ecosystems.Footnote 31 The chemicals are ‘persistent, have high leaching and runoff potential, and are highly toxic to a wide range of invertebrates’.Footnote 32 They threaten more sustainable farming systems through various contamination routes such as run-off waters, off-field dust, and aerial contamination. Their use may threaten biodiversity in refuge areas and potentially hinder the practice of organic farming by disrupting the biological control of pests.Footnote 33
Further, many studies link neonic exposure to human health risks, including thyroid disorders, poor sperm quality and quantity, and autism-related symptoms in children.Footnote 34 Despite this evidence, in the EU and elsewhere, neonic pesticides are still regarded as unlikely to pose a consumer health risk as long as their residues stay below toxicological limits.Footnote 35 Notably, however, corresponding reference values are typically set without considering combined effects of chemical mixtures or socio-economic stressors.Footnote 36
The EU has restricted the use of neonic pesticides over the past decade based on the argument of the acute risks they pose to bees. Use of clothianidin and thiamethoxam in the EU was first severely restricted in 2013,Footnote 37 followed by a complete ban on outdoor use in 2018 – with the exception of emergencies and in permanent greenhouses in which crops remain for their entire life cycle.Footnote 38 Following these restrictions, all renewal applications for the two active substances were withdrawn, and all authorizations for insecticides containing clothianidin and/or thiamethoxam have been revoked.Footnote 39
The measure at issue in this article, EU Commission Regulation (EU) 2023/334, completes this round of restrictions by requiring that residues of clothianidin and thiamethoxam, already banned in the EU, are also avoided in imported products. The Regulation was adopted as a result of ‘an environmental concern of a global nature, that is the decline of pollinators worldwide’.Footnote 40 This marks the first time that changes to residue limits in imported products have been based on the global environmental impact of pesticides, rather than on consumer food safety concerns related to pesticide residues in imported foods. The interests at stake are high, as pollination is fundamental to maintaining and promoting biodiversity and life on Earth.Footnote 41 Health risks to consumers are considered a secondary concern; regulatory authorities, including those in the EU, maintain that neonics pose no appreciable health risks to humans as long as their residues in food remain below toxicological reference values.Footnote 42
Prior to implementation of this new measure, products containing traces of clothianidin and/or thiamethoxam could still be imported into the EU even though the substances were no longer approved for use in the EU. This reflected a consolidated practice whereby food and feed containing traces of pesticides no longer approved in the EU could still be imported as long as the residues did not pose a risk to EU consumers, irrespective of the impacts of the pesticides in third countries. In these cases, the EU generally maintained ‘import tolerances’ based on GAPs in third countries,Footnote 43 or Codex Alimentarius standards (Codex MRLs).Footnote 44 Codex MRLs, it is important to stress, reflect only dietary concerns; environmental issues are not included in the Codex risk management principles for setting MRLs.Footnote 45 Non-EU countries have systematically opposed consideration of environmental aspects in the Codex Committee on Pesticide Residues risk analysis because, in their view, MRLs are related solely to food safety standards and are not intended to be an environmental safety management tool.Footnote 46 The new EU measure departs from this established practice by integrating environmental concerns in the MRL risk assessment process, thus ‘putting an end to the dichotomy of health and environmental standards’Footnote 47 in pesticide risk assessment for imported products.
3. Trade Concerns Raised by Latin American Countries
LA countries have strongly opposed the new EU restriction directed at pesticides. They argue that it violates current principles for setting MRLs; it is unjustifiably extraterritorial and discriminatory, excessively trade restrictive, disproportionate, and not rationally related to its stated objective. Below is a brief outline of their arguments before the WTO TBT Committee. This section does not assess the strength of these arguments under WTO law, as this is not the purpose of this contribution. Whether these concerns reflect public versus sectoral interests or align with human rights obligations will be addressed in the following section.
3.1. Concerns about the Objective and Appropriateness of the EU Measure
A key objection raised by LA delegates concerns the environmental aim of the measure. As mentioned, this is the first time that changes to MRLs in imported products have been proposed because of the possible environmental harm arising from pesticide use in producing countries rather than based on food safety concerns in consuming countries. This also explains why the EU measure was notified to the TBT Committee instead of the Committee on Sanitary and Phytosanitary Measures (SPS Committee). Several countries view this as a deviation from the current principles for setting MRLs. In the words of the delegate from Uruguay, ‘MRL measures must be established … with the aim of protecting consumer health and not for environmental protection purposes’.Footnote 48
Going one step further, some delegates raised concerns about whether the EU measure is appropriate to attain its stated objective. For example, Paraguay highlighted that controlled indoor use of neonics may not have any impact on pollinators, yet it may still result in levels above the limit.Footnote 49 More generally, several delegates pointed out that the decline of pollinators is a complex phenomenon that cannot be attributed exclusively to pesticide use – especially not to a single pesticide class.Footnote 50
3.2. Concerns regarding Extraterritoriality and Trade Discrimination
Delegates also expressed concerns about the extraterritorial and trade discriminatory nature of the EU measure.Footnote 51 They argued that the EU unjustifiably applied its domestic legislation extraterritorially, overlooking diverse environmental conditions, pesticide use, and agricultural production practices in non-EU countries.Footnote 52 In this direction, Brazil’s delegate emphasized ‘the variety of local conditions, including climate and soil’ and the ‘different needs and challenges posed by agricultural production in each country’.Footnote 53 Argentina’s delegate argued that ‘the EU’s decision is an extraterritorial application of law’ that clearly has a negative impact on trade.Footnote 54 Peru’s delegate argued that the EU measure ‘ignores and invalidates … Peru’s regulatory policies, which sovereignly establish the conditions for food production and agricultural activity in the country’.Footnote 55 Paraguay’s delegate further stated that the measure ‘will, in effect, make farmers in Paraguay and the region less competitive than farmers in Europe who do not have to contend with the same pests and climatic conditions to produce food, and who can also benefit from emergency authorizations to continue using these substances’.Footnote 56
3.3. Concerns about Trade-restrictiveness and Lack of Proportionality
Relatedly, delegates argued that the measure is unduly trade-restrictive and disproportionate. In their stated view, regardless of the legitimacy of the objective pursued, the EU measure will result in a ban on market access for a wide range of products.Footnote 57 The representative for Colombia, for example, argued that there is ‘no proportionality between the objective pursued by the EU and the disruptive effect on trade that the reduction of MRLs would have on the set of products covered by the measure’.Footnote 58 Viewed in this way, the new regulation would contravene WTO obligations to apply measures only when necessary, minimize negative trade effects, and avoid unnecessary trade restrictions.Footnote 59
As part of the proportionality analysis, some argue that less trade-restrictive options could achieve the same objective, that is, the protection of pollinators. In this direction, Paraguay’s delegate suggested that there are various other ‘mitigation options’ to manage potential risks to pollinators from the use of neonics.Footnote 60 For example, risks could be mitigated by applying neonics in the early morning or late afternoon when there is a lower prevalence of pollinators, or neonics could be avoided during the flowering stage of crops.Footnote 61
Additionally, delegates argued that while the risks associated with the use of neonics can be controlled, there are no effective replacements for these substances.Footnote 62 The representative for Guatemala pointed out that although biological alternatives have been evaluated for soil pest control, they have not been found to be efficient enough without compromising production.Footnote 63 The delegate noted that farmers began to use the neonic thiamethoxam as a substitute for chlorpyrifos, as the latter substance was previously affected by changes in the EU rules on MRLs, and further argued that ‘the European Union is leaving agricultural producers in third countries without alternative substances’.Footnote 64
3.4. Concerns over a ‘Just’ Transition towards Sustainable Food Systems
The impact of the EU’s transition process towards a sustainable food system on poverty-stricken populations has been another recurring concern. Trade delegates argued that limiting pesticide use based on environmental concerns could deprive farmers of essential tools for crop health, reduce crop supplies, and undermine the livelihoods of rural producers who depend on agricultural production for their income.Footnote 65 One representative observed that thiamethoxam is used to control the greening disease, a major cause of losses in orange production in Brazil and worldwide.Footnote 66 Additionally, it is employed against nematodes and black aphids in banana production, as well as against thrips and aphids in flower production.Footnote 67 According to this perspective, stringent pesticide regulations could cause significant losses to these sectors and disrupt trade with the EU, with negative consequences for the poorest.Footnote 68 In previous statements opposing the non-renewal of a different pesticide, chlorothalonil, Panama raised concerns about the potential harm of EU pesticide restrictions to the well-being and employment of thousands of families from the Ngäbe Buglé Indigenous people, the ‘main source of labour’ for the banana plantations in Changuinola and Puerto Armuelles, the ‘banana production enclave’ of Panama.Footnote 69
The above concerns, all of which were raised in the light of their alleged inconsistency with WTO law, will now be analyzed from a human rights perspective.
4. A Human Rights Analysis of Neonic-related Trade Restrictions
LA countries that raised trade concerns regarding the EU measure – namely, Argentina, Brazil, Chile, Colombia, Costa Rica, Ecuador, Guatemala, Paraguay, Peru, and Uruguay – are parties to major international human rights treaties. In 2022, they all endorsed the recognition of the human right to a clean, healthy, and sustainable environment by the United Nations (UN) General Assembly (the human right to a healthy environment).Footnote 70 This resolution was initially proposed by Costa Rica, along with five other countries, and was supported by more than 1,300 civil society organizations, Indigenous peoples’ groups, young activists, and 15 UN agencies and business groups. Additionally, these ten countries are also signatories to the Escazú Agreement, which recognizes the right to a healthy environment in Article 1.Footnote 71 The substantive elements of the right include ‘a safe climate, clean air, clean water and adequate sanitation, healthy and sustainably produced food, non-toxic environments in which to live, work, study and play, and healthy biodiversity and ecosystems’.Footnote 72 Meanwhile, the procedural elements of the right include access to information, public participation, and access to justice.Footnote 73
This section outlines a set of human rights issues that relate to or are impacted by neonics, pointing to a disconnect between the trade concerns raised in the WTO context and human rights commitments. As discussed below, the trade policy issues raised by delegates suggest a misunderstanding or disregard for the commitments established under environmental human rights law. This article argues that these human rights dimensions should be more prominently integrated into trade-related discussions and negotiations. Doing so will help to effectively address the complex relationship between commercial interests and broader societal values in trade policy formulation.
4.1. The Interdependence and Indivisibility of Human Rights
The Special Rapporteur on the human right to a healthy environment,Footnote 74 in collaboration with the Special Rapporteur on toxics and human rights,Footnote 75 identifies a non-toxic environment as a substantive element of the right to a healthy environment. In their report to the UN Human Rights Council, they explicitly mention neonicotinoid pesticides as a significant issue of concern for human rights.Footnote 76 Neonics can have an impact on the right to a healthy environment through multiple exposure routes and sources. Because contamination routes range from aerial contamination to run-off waters,Footnote 77 neonics can negatively affect the clean air and clean water and sanitation elements of the right to a healthy environment. The use of neonics on crops also threatens the healthy ecosystems and biodiversity element of the right to a healthy environment by affecting biodiversity in refuge areas. Additionally, it potentially undermines organic farming by impeding the biological control of pests,Footnote 78 which, in turn, raises concerns about violation of the right to healthily produced food.
In all these aspects, the widespread commercialization and use of neonics violates people’s right to a healthy environment. Likewise, trade policy stances that support the use of neonics conflict with the human rights commitment to a healthy environment.
With respect to the contested environmental objective of the EU measure, arguments by delegates that seek to separate human health from the need for a healthy environment are inconsistent with human rights law. Focusing on MRL risk assessments solely to protect consumer health overlooks the interconnectedness of human rights and environmental protection. Human rights law emphasizes that rights such as the right to health and the right to a healthy environment are interdependent and indivisible. This means that risk assessments should adopt a more integrated and holistic approach, accounting not only for legal toxicity thresholds in dietary intake but also for the broader impact on biodiversity and food production.Footnote 79
4.2. Equality, Non-discrimination, and Proportionality Informed by Human Rights Law
Under human rights law, assessments of discriminatory measures do not focus on state-to-state relationships – as occurs instead under trade law – but rather on the impacts on certain groups of people according to ethnicity, sex, gender, and economic or political situation.Footnote 80 In line with this principle, states have obligations to create and uphold meaningful environmental standards and to implement measures that are non-discriminatory and proportionate in addressing the significant risks of pesticides. This obligation includes implementing heightened measures to protect people in vulnerable situations.
While LA WTO delegates expressed concerns about the trade-discriminatory nature of the EU measure, their trade policy stance in favour of neonics is itself discriminatory towards people in vulnerable situations. Neonics tend to adversely affect constituencies that have much less political leverage in comparison with those actors who oversee and carry out large-scale intensive agriculture. Those adversely affected include small-scale beekeepers and organic farmers. In Costa Rica, for instance, the loss of bee colonies and honey production has been substantial, prompting the Association of Apiculturists (ASOCAPICO) to advocate a domestic ban on neonics.Footnote 81 Action has been taken in domestic courts, up to the highest levels. The Constitutional Chamber of the Supreme Court of Justice of Costa Rica has ordered the Ministry of Agriculture and Livestock to conduct a scientific study on the effects on health, the environment, and honeybees of the use of neonic pesticides.Footnote 82 Beekeepers’ interests align largely with those of organic farmers more broadly. Notably, small-scale banana production that is exported to the EU from Panama, Ecuador, Colombia, and Peru tends to be organic and ethically certified and does not use neonics.Footnote 83 This includes Fairtrade-certified cooperatives that strive to preserve the biodiversity of fragile wetlands in the heart of Panama’s banana production enclave – coexisting along pesticide-intensive plantations. Through a multiplicity of contamination routes, neonics can have a detrimental impact on organic farming systems and compromise organic farming, posing a threat to the interests of this green market segment.Footnote 84 In the trade concerns raised by WTO delegates, the interests of such constituencies are not acknowledged and alternatives to pesticides are quickly dismissed, revealing a bias against knowledge-intensive agroecological alternatives and related peasant systems.
As for the health impacts of neonics, evidence is emerging on risks to prenatally exposed children, including autism-like symptoms,Footnote 85 heart defects,Footnote 86 and birth defects of the brain.Footnote 87 This raises concerns about the impact of neonics on the right to health and education, especially among vulnerable groups like children. Studies in LA support these findings but also highlight the need for more robust research in the region to address methodological limitations and inconsistencies.Footnote 88 Substantive environmental standards should draw on the best available science. At the same time, the lack of full scientific certainty – including in regions like LA where research is sparse – should not be used to justify postponing effective and proportionate measures to prevent harm to ecosystems and people’s health. In cases where there are threats of serious or irreversible damage, states have a duty to take precautionary measures that are fair and do not regress on existing protection.Footnote 89 In particular, states have heightened obligations towards certain groups such as children, where the best interests of the child must be a primary consideration.Footnote 90
An additional argument in favour of banning neonics is that, even though in trade discussions about pesticides there is a strong emphasis on implementing and monitoring risk-mitigation measures, these measures are normally costly and relatively ineffective. According to the UN Special Rapporteur on the Right to Food, approximately 25% of developing countries lack effective laws on pesticide distribution and use, and about 80% lack sufficient resources to enforce existing pesticide-related laws.Footnote 91 Consequently, pesticides are responsible for an estimated 200,000 acute poisoning deaths annually, with 99% occurring in developing countries where health, safety, and environmental regulations are weaker and less rigorously enforced.Footnote 92 Proportionality concerns informed by human rights law also call into question risk-based management approaches that emphasize risk control of hazardous pesticides and mitigation, rather than banning hazardous substances.Footnote 93
4.3. ‘Just’ Transition towards Sustainability in Food Systems
From a human rights perspective, transitions to sustainable food systems must be realized without reinforcing existing patterns of inequality or worsening the conditions of vulnerable people.Footnote 94 Yet, when trade delegates from LA countries emphasize the potentially negative effects on small-scale farmers of the EU pesticide measure, the examples they provide focus mainly on the business model of intensive agricultural production (for example, intensive plantations of bananas). The consistency of this business model with human rights and sustainability is highly questionable. LA bananas are typically grown on large-scale monoculture plantations occupying several hundred hectares and using high levels of chemical inputs that frequently cause environmental harm.Footnote 95 Labour rights are often insufficient and incomes are inadequate to meet their basic needs.Footnote 96 Rights of freedom of association, peaceful assembly, and collective bargaining are often denied in practice.Footnote 97 Further, the arguments offered by trade delegates overwhelmingly ignore the social-ecological risks of farmers becoming trapped in cycles of dependence on costly, patent-protected foreign inputs while gradually losing generations of knowledge on how to control plant pests and diseases without chemicals.Footnote 98 Similarly, the risks and costs that neonics pose to other constituencies – such as beekeepers and organic farmers – are not accounted for, as introduced above. These points cast serious doubt on the social justice issues raised by trade delegates, as they fail to capture the complexities surrounding neonics.
In summary, the trade concerns raised by LA delegates within the WTO framework do not adequately incorporate human rights obligations or principles. They mainly represent the narrow interests of export-oriented sectors affected by EU limitations on neonic residues, without giving due consideration to other (competing) domestic interests or broader societal and ecological concerns.
5. A Twofold Democratic Deficit in Deviation from Human Rights
The previous analysis points to bias among WTO delegates in favour of commercial interests, resulting in negotiated rules and negotiating positions that ‘are naturally dominated by free trade and commercial values’.Footnote 99 Such commercial bias arguably reflects a ‘democratic deficit’Footnote 100 in trade diplomacy on the ‘input side’,Footnote 101 drawing attention to the very narrow band of constituencies and interests who can effectively shape negotiating positions and outcomes in trade diplomacy. Doubts about the ‘WTO’s input legitimacy’ have been raised both at the national level, where trade policy is formulated, and at the international level, where global rules are negotiated,Footnote 102 in what has been described as the ‘two-level game’ of trade governance.Footnote 103 In the following paragraphs, we discuss this twofold democratic deficit, both nationally and internationally, with reference to two procedural aspects of the right to a healthy environment: access to information and public participation.Footnote 104
5.1. National Level
At the national level, the formulation of trade policies that have environmental implications involves limited access to information for the public and, more generally, public participation. In some detail, there is little democratic involvement in states’ notifications to the TBT Committee or the trade concerns raised or supported in that context. More generally, there is commonly little democratic input into states’ negotiating position within the WTO, reflecting the fact that trade policy is a function of the executive branch of government, with little oversight by respective parliaments.Footnote 105 Furthermore, trade negotiations fall primarily under the responsibility of trade ministries. Other branches of government concerned with broader societal interests (such as health, the environment, or human rights) tend to have little or no input in the process.Footnote 106 When interministerial consultation processes exist, non-trade bodies can comment on draft trade positions, but these processes can often result in being mere formalities and their inputs not meaningfully being taken into account. Several factors hinder meaningful interministerial cooperation in domestic trade policymaking, which include the short deadlines dictated by WTO submission timelines and the highly technical nature of trade dossiers, which make them poorly accessible to outsiders. Other constraints stem from trade ministries’ mandate, mission and organizational culture, which may limit the flexibility of staff in terms of prioritizing sustainability concerns over commercial interests when formulating trade positions.Footnote 107 Moreover, while trade policies and negotiating positions are prepared in country capitals, routine day-to-day work is handled by each country’s diplomatic mission in Geneva (Switzerland). Officials from the missions in Geneva attend meetings of the many WTO councils, committees, working parties, and negotiating groups at WTO headquarters,Footnote 108 and they do not always consult their capitals on the specifics of their statements in committee work. This physical distance of daily operations in Geneva highlights the gap between LA civil society and the diplomatic representatives involved in trade.
This does not mean that domestic trade policymaking is strictly the preserve of state bureaucracies that are insulated from ‘non-state actors’.Footnote 109 On the contrary, trade policy involves a web of interactions and consultations with private actors on a daily basis.Footnote 110 As acknowledged by the WTO Secretariat, the ‘work of the WTO is undertaken by representatives of member governments, but its roots lie in the everyday activity of industry and commerce. Trade policies and negotiating positions are prepared in capitals, usually taking into account advice from private firms, business organizations, farmers, consumers and other interest groups’.Footnote 111 In Sapra’s words, trade governance ‘involves non-hierarchical steering and management of networks of public and private actors’.Footnote 112
However, critics point out that these collaborative ‘horizontal networks’ are not truly inclusive, thereby undermining enjoyment of the public participation element of the right to a healthy environment.Footnote 113 Trade ministries tend to respond to a narrow range of sectoral interests and tend to prioritize the trade interests of economically powerful actors over competing non-trade interests,Footnote 114 such as intrinsic and cultural values associated with people’s right to a healthy environment, including healthy ecosystems and biodiversity.Footnote 115 Importantly, the non-state actors who are directly involved in negotiations normally represent business interests rather than civil society, further exacerbating the commercial bias in trade positions.Footnote 116 Some argue that ‘the WTO negotiation process is simply amplifying the lobbying power of actors who already have huge national influence, namely multinational corporations, the major engines of global trade’.Footnote 117 Note also that in non-democratic regimes, ‘corruption and elite domination may result in less than fully representative leadership’.Footnote 118
Ultimately, the negotiating positions adopted by national delegations display asymmetries of interests, power politics, and ‘public choice’ dilemmas. Building on public choice theory,Footnote 119 politics – and the law – are ‘arenas of struggle in which actors seek private gains’.Footnote 120 The negotiating positions of WTO national delegations reflect ‘the equilibrium outcome of a rivalrous process among competing interest groups who try to cause governmental policy to further their own end’.Footnote 121
Overall, public choice perspectives bring into focus the asymmetry of interests with respect to export-oriented agribusiness and pesticides in LA. On one side, there are health, environmental, and cultural interests, which reflect the broad societal concerns expressed in international human rights law and constitutionally recognized rights in LA countries, as well as diffuse and non-proprietary interests. On the other side, there are sectoral commercial interests (such as agribusiness) that are focused, coordinated, and highly motivated to intervene politically. The nature of the interests at stake reveals discrepancies in the amount of influence and power that the different constituencies involved can exercise: local communities, Indigenous people, and biosphere defenders possess significantly less economic and political power than the agro-chemical industry and industrial farming lobbies. While the former group are rights-holders in terms of the right to a healthy environment, the latter are duty-bearers with human rights responsibilities towards rights-holders in line with the UN Guiding Principles on Business and Human Rights.Footnote 122
5.2. International Level
In parallel with the national dimension of representation in trade policy, there is the issue of direct participation of civil society actors in the WTO through formalized, institutionalized processes. While existing institutionalized WTO venues provide a forum for ‘intellectual competition’, exposing delegates and the secretariat to a range of questions and opinions,Footnote 123 they do not formally include non-state actors in deliberations. Engagement processes include (accredited) non-governmental organization (NGO) attendance to the plenary sessions of ministerial meetings, participation in public symposiums and forums, and involvement in dispute settlement procedures through the submission of amicus curiae in briefings and workshops and involvement in advisory boards.Footnote 124 Notably, NGOs are still formally excluded from the formal WTO decision-making process, even if some NGO representatives may be present ‘at the table’ as part of a state delegation.Footnote 125 From a human rights perspective, this indicates discrimination against NGO representatives who are not close allies of the government.Footnote 126
This has led to calls for more equitable and meaningful integration of non-state actors in the formal process of decision-making.Footnote 127 It has been suggested, for example, that the WTO could draw lessons from NGO engagement in other international organizations, such as the International Labour Organization (ILO).Footnote 128 However, proposals have largely been dismissed on the grounds that NGOs are not democratically elected and lack democratic credentials. Unfortunately, this reasoning considers only nation-states and territorial electoral politics as legitimate while ignoring ‘that many civil society movements and organizations have arisen out of state exclusion and oppression or the failure of electoral politics to adequately represent their issues’.Footnote 129 According to this perspective, NGOs ‘may be said to have a functional, not electoral or territorial, representational importance’.Footnote 130 Furthermore, under human rights law, public participation is a key element of the right to a healthy environment.Footnote 131
At the same time, experts and delegations, in particular from global south countries, have opposed the direct involvement of NGOs in global trade governance, citing concerns of Western bias.Footnote 132 They argue that the involvement of NGOs could prioritize non-trade issues promoted by developed countries, further skewing global trade governance towards Western interests. While this narrative of a north–south divide may have some merit, more often what is truly at stake is a divide between vulnerable rights-holders who have limited say in decision-making, on one side, and large-scale agribusinesses with substantial political and economic power, on the other. Moreover, labelling human rights and biodiversity law as ‘Western concepts’ ignores the extensive commitment of numerous actors from the global south who have assumed leadership positions and worked to advance both human rights and biodiversity law in global and regional contexts.Footnote 133 Their involvement in WTO decision-making processes would favour a more meaningful consideration of broader societal interests in the formulation of trade policy.
6. Options for Trade Democratization
Moving forward involves democratizing trade and pesticide diplomacy so as to meaningfully integrate biodiversity and human rights concerns in the formulation of trade policies on pesticides. This encompasses procedural innovations for more inclusive decision-making at the national and international levels in order to address the twofold democratic deficit in trade governance described above. Before we delve further into the analysis, it is important to acknowledge a caveat: while this section focuses on trade governance mechanisms, a deeper understanding of the subject would require exploring how human rights can be directly integrated into pesticide risk regulation in producing countries. This integration would, in turn, have an impact on their trade policies. Given the complexity of pesticide risk regulation, this issue deserves separate consideration in future discussion.
6.1. National Level
The responsibility for remedying democratic deficits in domestic decision-making and the fragmentation between trade policy and human rights lies primarily with national governments. Good practices can provide guidance on country-driven efforts for policy coherence in addressing the interconnected health and environmental risks of pesticides. One example is Costa Rica’s Public Policy on Agricultural Pesticides 2024–34, which harmonizes agricultural practices with public health, the environment, and biodiversity.Footnote 134 The policy was developed jointly by the Ministry of Environment and Energy, the Ministry of Agriculture and Livestock, the State Phytosanitary Service, and the Ministry of Health. It was opened for public consultation to other institutions and the public, in accordance with Article 361 of the General Law of Public Administration.Footnote 135
In addition to national public health and environmental institutions, independent oversight bodies such as national human rights institutions (NHRIs) also have a crucial role to play. For example, Costa Rica’s NHRI (la Defensoría de los Habitantes [Ombudsman] Costa Rica) has been instrumental in exposing the environmental and health impacts of pesticide use in Costa Rica, which is highly relevant to the non-toxic environment element of the right to a healthy environment. In 1998, it investigated the impact of toxic pesticides on banana plantation workers, including worker sterilization, miscarriages among women workers, and birth defects in children.Footnote 136 In 2016, it conducted a comprehensive investigation into the widespread use of pesticides in the country, highlighting significant risks to human health and the environment.Footnote 137 In 2019, it presented robust recommendations to the legislative body for stringent controls and enhanced regulations on pesticide use.Footnote 138 These findings and policy recommendations should have and do have great potential to inform trade policy coherently.
6.2. International Level
It is fundamental to consider procedural devices and structural reform options at the WTO level to foster inclusiveness of biodiversity and human rights interests, connecting the national and international levels. With regard to critical environmental issues of global concern, the need arises for ‘more appropriate structure-substance pairings’Footnote 139 that better address the complex interplay of commercial and broader societal interests, including human rights and the environment, in trade regulation. This raises the question of how the WTO system can facilitate greater participation of broad societal interests and constituencies in domestic and international trade policymaking. With specific reference to pesticides, we propose a three-pronged approach to enable transformative changes in trade governance.
Bring human rights and environmental interests to the table
Firstly, new rules at the WTO level should require the inclusion of human rights and environmental concerns in domestic trade policymaking. This should be a mandatory requirement when trade positions involve pesticide regulations and other critical environmental concerns, such as those outlined in the Codex Planetarius agenda.Footnote 140 When addressing such critical non-trade concerns, trade negotiations are too important to be left to the competence of trade ministries alone.Footnote 141
A possible option – which we refer to as the ‘ILO model’– would involve the introduction of a WTO requirement that member state delegations to the WTO include representatives from other relevant line ministries and departments. These could include the ministries of health, the environment, Indigenous affairs, as well as national focal points of the CBD and Escazú Agreement, for example. Useful models for multi-interest delegations can be drawn from accreditation and registration procedures at the ILO,Footnote 142 where national delegations are tripartite: they must be composed of two government delegates, one employers’ delegate, and one workers’ delegate.Footnote 143 A tripartition would ensure diverse views and competences being represented in each national delegation, encouraging a more meaningful consideration of both commercial and societal interests in formulating the overall policy position of the delegation. It would promote policy coherence with human rights commitments, constitutional principles, and country-led policy efforts to address the interconnected health and environmental risks of pesticides, as in the Costa Rica example.
Another option – the ‘external intervention’ model – would consist of a WTO requirement mandating domestic interministerial consultations before delegations adopt positions on critical environmental issues at the WTO. If such a system were in place, the trade delegation would be required to solicit comments from environmental departments/ad hoc national bodies when working with critical trade and environment dossiers. For instance, in the area of pesticides, negotiating agents could be required to consult with health and environmental ministries before taking any position related to pesticides listed in the PAN International List of Highly Hazardous Pesticides.Footnote 144 However, the strength of this option would depend on whether the comment is binding in formulating the national position on a trade issue.
An objection to these two options is that certain line ministries, particularly environmental ministries, typically participate in the pre-market approval process for pesticides and would not resist the establishment of trade concerns and positions that align with domestic pesticide policies. This highlights the importance of engaging with voices that are usually under-represented in pesticide approval processes, such as those from Indigenous affairs or CBD focal points. Besides, domestic decisions regarding the approval of a pesticide are often opaque and politically contested, and the outcomes reflect the varying political influence of the administrative bodies involved and various degrees of regulatory capture. Multi-interest trade delegations risk falling into these dynamics, but they may also help to expose and counter them, provided that those representing public interests are sufficiently empowered, as discussed further below. A related mechanism could empower the legislature to attach ex ante constraints on the exercise of discretion by trade delegates in the form of precise legal directives.Footnote 145 For example, trade delegates could be required to ensure that their statements align with Target 7 of the Kunming-Montreal Global Biodiversity Framework on reducing risks of pesticides and highly hazardous chemicals.Footnote 146
Empower human rights and environmental interests
Secondly, it would be important to empower environmental and human rights constituencies within national delegations as well as in the context of interdepartmental consultation processes. Indeed, bringing representatives of broad societal interests to the table is not enough to ensure meaningful representation in trade policy governance. This might also enhance their position in the pesticide approval process at the domestic level.
One way to do so would be to establish close collaboration between ‘environmental delegates’ to the WTO (or in the context of domestic consultation processes) and specialist knowledge entities. These entities could provide scientific information and advice, and lobbying influence on the ‘environmental delegates’ within national delegations at the WTO (if the ILO model is followed), or to the parties commenting on draft trade positions in the context of interdepartmental consultation processes (if the ‘external intervention’ model is followed).
At the WTO level, this collaboration might entail, for example, setting up an ‘advisory body’ within the Committee on Trade and Environment linked to the Science-Policy Platform on Biodiversity and Ecosystem Services (IPBES). To ensure meaningful uptake of the advisory body’s inputs in trade policy formulation, it is worth exploring whether WTO accreditation rules could outline requirements to guarantee that environmental delegates possess the necessary expertise and integrity to promote the advisory group’s recommendations within their trade delegations. For instance, national delegates appointed to represent environmental interests in multi-interest trade delegations to the WTO could be required to be approved by the advisory body or to be pooled from national rosters endorsed by the advisory body.
Ensure fair terms for trading partners
Finally, countries that unilaterally set more stringent limits on pesticides should ensure fair terms for their trading partners. As summarized in Matthews with reference to MRL adjustments by the European Commission, this includes several aspects.Footnote 147 Firstly, the EU should provide a sufficient transition period to enable the development of safe alternatives. Secondly, unilateral trade requirements should be coupled with the commitment of significant technical and financial resources to enable the fulfilment of new rules among small-scale and medium-scale farmers in low- and middle-income countries. Cooperation projects and programmes, including aid for trade, could be effectively mobilized to this end. Thirdly, the EU should establish meaningful consultation mechanisms on trade requirements, transition periods, and accompanying measures with global south administrations – beyond trade ministries – as well as civil society organizations and biosphere defenders. This approach would foster dialogue in exporting countries between state entities responsible for upholding human rights and the rights-holders themselves. While consultation mechanisms are in place for EU legislative proposals, they are not as well developed for non-legislative acts – including acts that may bear important trade, human rights, and biodiversity implications for non-EU countries.Footnote 148 Decisions concerning residue limits, for example, are adopted by means of non-legislative acts by the EU Commission.Footnote 149 The advisory body introduced above could provide a meaningful mechanism to communicate the concerns of biodiversity defenders and broad environmental communities to the EU.
7. Conclusions
Structural reform is needed to integrate broad societal and biodiversity public interests into pesticide-related trade policy. Human rights law – in particular, the human right to a healthy environment – has a critical role to play in both substantive and procedural terms in this arena. In substantive terms, human rights law makes it possible to ‘deconstruct’ trade concerns and revisit WTO obligations through a more granular and equitable assessment of who benefits and loses from particular pesticide-related trade policy stances. This more granular focus reveals that states’ trade policy stances typically reflect domestic inequalities, often to the detriment of the most vulnerable. It also underscores the existing support for high environmental standards in the global south, challenging the narrative of a north–south divide on certain environmental issues.
From a procedural standpoint, human rights law calls for the involvement of rights holders – such as Indigenous people, local communities, women, and biosphere defenders – who engage in nature stewardship that contrasts greatly with dominant agribusiness models. At the governmental level, it requires better coordination with health and environmental bodies. Procedural innovations that give these constituencies a say in trade policymaking could disrupt the tendency to align trade policy with powerful export sector business interests, an alignment that currently restricts policy debate on trade, pesticides, and biodiversity. To overcome this stalemate, it is vital to weave together human rights, biodiversity and trade law, rather than allow them to persist in fragmentation.
Acknowledgements
The authors would like to thank the anonymous reviewers of TEL for their constructive and insightful comments. We also thank Elisabeth Bürgi Bonanomi, Carola Glinski, and the project team of the BIO-TRADE project for valuable discussions on the topic.
Funding statement
This research was funded through the BIO-TRADE project, Protecting Biodiversity through Regulating Trade and Business Relations, as part of the 2020–2021 Biodiversa and Water JPI joint call for research projects, under the BiodivRestore ERA-NET Cofund (GA N°101003777), with the EU and the funding organizations SNSF, AKA, Innovation Fund Denmark and Swedish Environmental Protection Agency. Research for this article was also conducted through the DEFEND-BIO project, Biosphere Defenders Leveraging Legal and Governance Tools for Just Sustainability Transformation under the Biodiversa+ 2023 BiodivNBS call with the EU and the funding organizations Swedish Research Council Formas (2024-00900), Innovation Fund Denmark, FWO, SFN, and NWO.
Competing interests
The authors declare none.
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