3 days ago
A Swiss court's decision on use of a pesticide sends a hopeful message to Indian farmers
A Swiss civil court's decision last fortnight to initiate an assessment of evidence regarding the use of the pesticide Polo in a lawsuit against the agrochemical giant Syngenta sends a message to Indian farmers that it is possible to challenge a huge company and hold it accountable, representatives of individuals poisoned by pesticides said.
The cases were brought in 2021 under the Swiss public liability law by the wives of two farmers in Maharashtra's Vidarbha region who died in a wave of 'pesticide poisoning' in 2017 along with a survivor of the poisoning. Polo, manufactured by Syngenta, was widely used in Vidarbha in 2017.
Pesticide poisoning is said to occur when a chemical intended to control insects is ingested or breathed in by a human or absorbed through the skin.
'This indicates that the court in principle considers that Syngenta could be held liable for harm caused by its hazardous products abroad, and paved the way for victims and their families to seek justice before the Swiss court,' said the Pesticide Action Network India in a statement.
The court will treat these three cases separately because different questions regarding evidence may emerge in each of them.
Deadly cocktail
A deadly cocktail of pesticides including Polo is alleged to have caused the deaths of more than 20 farmers in Vidarbha, through contact poisoning and left hundreds affected in 2017 and 2018. The Basel civil court in July 2022, ruled that it had jurisdiction in the case and permitted free legal aid for the complainants, according to a press statement on Monday from PAN India.
The complainants are supported by three organisations: Pesticide Action Network India, Public Eye, which works to make Swiss companies accountable. and the European Centre for Constitutional and Human Rights.
A spokesperson for Public Eye said that the court will now go into the evidence that the parties have submitted during the written submissions and most likely conduct witness hearings and party interviews. The court will see whether it is well enough established that the claimants or their deceased husbands have used the pesticide in question. No new evidence can be submitted at this point.
This phase of the court case is likely to take a while, the Public Eye spokesperson said. If the court decides that this fact is established, the proceedings will continue and the court will decide what the next step should be. If not, the court can reject the case.
The case seeks to hold Syngenta accountable for selling Polo in India, though this is not allowed for sale in the European Union. Polo's active ingredient, diafenthiuron, was banned in the European Union in 2002 to protect the environment and human health.
In 2009, it was taken off the market in Switzerland. In March 2017, diafenthiuron was added to the list of substances that are banned because of their effects on health and the environment, according to Public Eye.
The European Chemicals Agency has said that diafenthiuron is 'toxic if inhaled' and stated that it 'may cause damage to organs through prolonged or repeated exposure'. However, Polo is available freely in countries like India.
Reports by PAN India and Public Eye have documented the large-scale pesticide poisonings in Vidarbha, a European Centre for Constitutional and Human Rights statement said. It said that while Syngenta still denies any responsibility for the events, police records from local authorities in Vidarbha state that 96 cases of poisoning, two of which led to fatalities, were linked to a Syngenta insecticide going by the name of Polo.
This lawsuit was filed after a compulsory mediation procedure in Switzerland had ended without an agreement. It sends a clear message that the Swiss judicial system will deal with cases brought by victims of corporate harm abroad but caused by Swiss companies, according to PAN India.
It added that as the first civil lawsuit from the Global South against an agrochemical company over pesticide poisonings, this case breaks new legal ground.
Earlier, in September 2020, on behalf of 51 affected families, PAN India, the Maharashtra Association of Pesticide Poisoned Persons, Public Eye and the European Centre for Constitutional and Human Rights had filed a complaint against Syngenta with the Organization for Economic Cooperation and Development's Swiss National Contact Point in Bern in September 2020. This is a complaint mechanism under the OECD framework.
While initially the complaint was accepted in December 2020, and four mediation meetings were held with Syngenta in 2021, the proceedings ended in 2022 without a positive outcome or any steps to ensure accountability from the company.
The outcome of the OECD complaint was disappointing for farmers, but this case could set a benchmark in corporate accountability globally. During the mediation, it was emphasised that it was important for the farmers that Syngenta provides remedies to the 51 farmers and farm workers allegedly impacted in Vidarbha in 2017.
However, Syngenta repeatedly asserted that it could not comment on issues that were being dealt with in the proceedings before the Swiss civil court, in particular the question if Polo had caused the poisonings alleged in the complaint.
The European Centre for Constitutional and Human Rights contended that Syngenta's position contradicts the United Nations Guiding Principles on Business and Human Rights, which ensures that businesses are held accountable and also provide access to effective remedy for victims.
This forms an important part of the state's duty to protect against business-related human rights abuses, according to a United Nations High Commission for Human Rights in a 2018 report.
'The group of 51 farmers and their families should not be deprived of their right to access remedy through a non-judicial process simply because another group of victims chose to file a civil lawsuit,' said Marcos Orellana, UN Special Rapporteur on Toxics and Human Rights. 'This is setting a bad precedent that underscores the weaknesses of national contact points for the OECD Guidelines'.
In addition the complaint had demanded that the provisions of the International Code of Conduct on Pesticide Management be implemented by Syngenta to prevent future cases of poisoning in India. Even this demand was not conceded.
The European Centre for Constitutional and Human Rights stated that the code required that companies avoid selling hazardous products such as Polo, whose handling and application require the use of personal protective equipment that is uncomfortable, expensive or not readily available to small-scale users and farm workers in countries with hot climates such as India.
One of the problems that emerged in the increased pesticide poisoning cases in 2017 and 2018 was that few farmers wore any sort of protective clothing. It was only in 2018 that some sort of protocol to use pesticides and treat the severe cases was established.
Deaths confirmed
In an Right to Information application filed by this correspondent in 2017-'18, the police records confirmed 22 deaths and 349 affected by pesticide poisoning in Yavatmal district alone in 2017 and 20-odd more deaths in other districts of Vidarbha region.
Only in five deaths in Yavatmal did the police file cases against pesticide dealers under section 304(a) of the Indian Penal Code (causing death by negligence and the Insecticide Act).
Most of those who died had used monocrotophos as one of the chemicals they sprayed and a mixture of toxic pesticides. The first farmer who was killed, Devidas Madavi, used Profex Super, a combination of profenofos and cypermethrin, that other farmers also did. At least 80 of those affected and who survived, reported using Polo, according to police records, sometimes along with other chemicals.
A state government Special Investigation Team report said that in 2016-'17, treatment for pesticide poisoning had been sought by 434 patients. In 2017-'18. the number doubled to 886. There is continuing cause for concern as pesticides like Polo continue to be used for cotton, posing a grave threat to farmers and the environment.
