Los Pueblos acts of spraying herbicides with the use of glyphosate doesnotcause environmental damage as it is presently notlisted as an organic

pollutant (Annex I,Protocol to the 1979 Convention of Long-Range Transboundary Air Polution on Persistent Organic Pollutants) that could cause potential damage to the environment; if at all, aerial spraying fallsunder the doctrine of state necessity. Herbicides are chemicals used to manipulate or control undesirable vegetation. The most frequent application of herbicides occurs in row-crop farming, where they are applied before or during planting to maximize crop productivity by minimizing other vegetation. They also may be applied to crops in the fall, to improve harvesting. Herbicides are used in forest management to prepare logged areas for replanting; the total applied volume and area covered is greater but the frequency of application is much less than for farming (Shepard et al. 2004). In suburban and urban areas, herbicides are applied to lawns, parks, golf courses and other areas. Herbicides are applied to water bodies to control aquatic weeds that impede irrigation withdrawals or interfere with recreational and industrial uses of water (Folmar et al. 1979). The potential effects of herbicides are strongly influenced by their toxic mode of action and their method of application. The molecular site of action is challenging to predict because structural associations have not been identified (Duke 1990), but modes of action are well-established. Herbicides can act by inhibiting cell division, photosynthesis, or amino acid production or by mimicking natural auxin hormones, which regulate plant growth, and causing deformities in new growth (Ross and Childs 1996). Methods of application include spraying onto foliage, applying to soils, and applying directly to aquatic systems. According to United States http://www.epa.gov/caddis/ssr_herb_int.html Environmental Protection Agency

Glyphosate (N-(phosphonomethyl)glycine) is a broad-spectrum systemicherbicide used to kill weeds, especially annual broadleaf weeds and grasses known to compete with commercial crops grown around the globe. It was discovered to be a herbicide by Monsanto chemist John E. Franz in 1970.[3] Monsanto brought it to market in the 1970s under the trade name Roundup, and Monsanto's last commercially relevant United States patent expired in 2000. Called by experts in herbicides "virtually ideal" due to its broad spectrum and low toxicity compared with other herbicides,[4] glyphosate was quickly adopted by farmers. Use increased even more when Monsanto introduced glyphosate-resistant crops, enabling farmers to kill weeds without killing their crops. In 2007 glyphosate was the most used herbicide in the United States agricultural sector, with 180 to 185 million pounds (82,000 to 84,000 tonnes) applied, and the second most used in home and garden market where users applied 5 to 8 million pounds (2,300 to 3,600 tonnes); additionally industry, commerce and government applied 13 to 15 million pounds (5,900 to 6,800 tonnes). [5] While glyphosate has been approved by regulatory bodies worldwide and is widely used, concerns about its effects on humans and the environment persist Glyphosate is one of a number of herbicides used by the United States and Colombian governments to spray coca fields through Plan Colombia. Its effects on legal crops and effectiveness in fighting the war on drugs have been disputed. [24] There are

reports that widespread application of glyphosate in attempts to destroy coca crops in South America have resulted in the development of glyphosate-resistant strains of coca nicknamed "BolivianaNegra", which have been selectively bred to be both "Roundup Ready" and larger and higher yielding than the original strains of the plant. (Jeremy McDermott. The Scotsman (Scotland) 27 August 2004 New Super Strain of Coca Plant Stuns Anti-Drug Officials)

According to National Pesticide Information Center Acute Toxicity: Oral Glyphosate is low in toxicity to rats when ingested. The acute oral LD 50 in rats is greater than 4320 mg/kg.17 See the text boxes on Toxicity Classification and LD50/LC50.

Dermal Glyphosate is low in toxicity to rabbits when applied to the skin. The acute dermal LD50 in rabbits is greater than 2 g/kg.17 Glyphosate is low in toxicity for eye irritation and very low in toxicity for dermal irritation. In studies with glyphosate manufacturing use products, researchers observed mild eye irritation in rabbits that cleared in seven days. 18,19

The formulated product Roundup, containing 41% glyphosate, was applied to the skin of 204 male and female volunteers in a modified Draize test. No sensitization was observed. The researchers concluded that exposure would not lead to photoirritation or photosensitization.20 Humans Researchers collected urine samples over 8 months from workers at two forestry nurseries where glyphosate was used for weed control. No glyphosate was detected in any of the 355 urine samples. The researchers attributed the lack of detected glyphosate in worker urine samples to the poor absorption of glyphosate through the skin.29 See the text box on Exposure.

Exposure: Effects of glyphosate on human health and the environment depend on how much glyphosate is present and the length and frequency of exposure. Effects also depend on the health of a person and/or certain environmental factors. Five forestry workers sprayed glyphosate for 6 hours a day over the course of a week. No statistically significant differences were found in medical examinations and laboratory testing performed on the workers following pesticide application. 30 Researchers collected urine samples from farm families in South Carolina and Minnesota as part of the Farm Family Exposure Study. On the day of application, 60% of farmers had a detectable level of glyphosate in their urine of at least 1 ppb. The

geometric mean of glyphosate detected was 3 ppb, with a maximum value of 233 ppb. Mean urinary concentrations of glyphosate were higher in farmers who did not use rubber gloves during application. 31 Humans The U.S. EPA classified glyphosate as Group E, evidence of non-carcinogenicity in humans. The U.S. EPA does not consider glyphosate to be a human carcinogen based on studies of laboratory animals that did not produce compelling evidence of carcinogenicity.6 See the text box on Cancer.

Cancer: Government agencies in the United States and abroad have developed programs to evaluate the potential for a chemical to cause cancer. Testing guidelines and classification systems vary. To learn more about the meaning of various cancer classification descriptors listed in this fact sheet, please visit the appropriate reference, or call NPIC. Researchers reviewed the scientific literature on glyphosate, its major metabolite AMPA, formulated Roundup products manufactured by Monsanto, and the surfactant POEA. They found that Roundup and its components did not cause mutations or tumor formation. The researchers concluded that glyphosate is not carcinogenic.13 Researchers assessed the exposure-response relationship between use of products containing glyphosate and cancer in 57, 311 licensed pesticide applicators participating in the Agricultural Health Study. Exposure to glyphosate was not associated with overall cancer incidence or most cancer subtypes. In a small number of cases, there was a "suggested association" between glyphosate exposure and multiple myeloma incidence.38 Date Reviewed: September 2010

SOURCES: http://npic.orst.edu/factsheets/glyphotech.html Please cite as: Miller, A.; Gervais, J. A.; Luukinen, B.; Buhl, K.; Stone, D. 2010. Glyphosate Technical Fact Sheet; National Pesticide Information Center, Oregon State University Extension Services.http://npic.orst.edu/factsheets/glyphotech.html. Glyphosate. Human-Health Assessment Scoping Document in Support of Registration Review; U.S. Environmental Protection Agency, Office of Prevention, Pesticides, and Toxic Substances, Office of Pesticide Programs, U.S. Government Printing Office: Washington, DC, 2009. Lavy, T. L. Conifer seedling nursery worker exposure to glyphosate. Arch. Environ. Contam.Toxicol. 1992, 22, 6-13. Jauhiainen, A.; Rasanen, K.; Sarantila, R.; Nuutinen, J.; Kangas, J. Occupational exposure of forest workers to glyphosate during brush saw spraying work. Am. Ind. Hyg. Assoc. J. 1991, 52 (2), 61-64.

Acquavella, J. F.; Alexander, B. H.; Mandel, J. S.; Gustin, C.; Baker, B.; Chapman, P.; Bleeke, M. Glyphosate biomonitoring for farmers and their families: results from the Farm Family Exposure Study. Environ. Health Perspect. 2004, 112 (3), 321-326. Chan, P. C.; Mahler, J. F. NTP Technical Report on toxicity studies of glyphosate (CAS No. 1071-83-6) administered in dosed feed to F344/N rats and B6C3F1 mice . U.S. Department of Health and Human Services, Public Health Service, National Institutes of Health, National Toxicology Program: Research Triangle Park, NC, 1992; pp 12-13, 24. Draft List of Initial Pesticide Active Ingredients and Pesticide Inerts to be Considered for Screening under the Federal Food, Drug, and Cosmetic Act. Fed.Regist. June 18, 2007, 72 (116), pp 33486-33503.

http://www.mamacoca.org/docs_de_base/Fumigas/Esposito_ICJ_Ecuadro_vs_Colombia_Aerial Spraying_august2010.pdf

Colombia has made clear that the primary ingredient in its herbicide brew is glyphosate (N-phosponomethyl glycine, C6H17N2O5P), an isopropylamine salt used widely as a weed killer. 45 Glyphosate is a nonselective, broad-spectrum, systemic herbicide that is one the most widely used pesticides (by volume) in the world.46 It inhibits an enzyme (enolpyruvylshikimate phosphate synthase ) that is part of a plants shikimate pathway. The result is a prevention of the production of essential amino acids in any plant species, inhibiting plant growth.47 Glyphosate is often portrayed as relatively innocuous to humans and animals because they lack the shikimate pathway the herbicide targets in plants; however, the warnings on the product suggest otherwise. In other words, glyphosate does not distinguish between illicit coca and other plants it simply kills any plant it comes into contact with bypreventing the production of necessary amino acids. Indeed, the warnings on glyphosate products call attention to the harmful effects the herbicide can have on humans upon contact with the eyes, if inhaled, or if swallowed, and explicitly states: Do not apply this product in a way that will contact workers or other persons, either directly or through drift. Only protected handlers may be in the area during application. 49 While precautions are reportedly taken by Colombian Army soldiers after spraying the herbicide, there is no evidence to indicate that similar precautions aretaken by the people living in the fumigated areas. 50 Glyphosate is rarely used alone. Typically, the herbicide is combined with other chemicals, known as surfactants, in an effort to increase efficiency by promoting greater intake through plant leaves.52
http://www.uiowa.edu/~tlcp/TLCP%20Articles/19-2/landel.finalfinal.042210.pdf

ARE FUMIGATIONS A VIOLATION OF INTERNATIONAL HUMANITARIAN LAW? When discussing the IHL relevant to aerial fumigations, this Article relies on treaties and rules of customary law as they apply to non-international armed conflict. Part II explained that there is a non-international armed conflict in Colombia. AP2 sets out the law pertaining to non-international armed conflict. AP2 is complemented by rules of customary international law set out by the ICRC in their comprehensive study of the topic. 119 As a result, when looking at Colombias actions in relation to fumigations, this Article will look at both AP2 and customary international law. In articulating the implications of the relevant IHL concepts, this Article refers to cases pertaining to international armed conflict, and assumes that the definitions of the IHL concepts are the same for both types of conflict. The basic premise behind fumigation is that the government should be entitled to fumigate because growing coca is for the most part illegal, even though it is also fumigating indigenous areas where people are legally entitled to grow coca. 120 However, this Article argues that, in fumigating even illegal plantations, Colombia is bound by the rules of IHL. Under Article 4(1) of AP2, all persons not directly participating in hostilities, or who are no longer participating in hostilities, are entitled to respect for their person. 121 Article 4(2) also prohibits acts that involve violence to the health, physical, and mental well-being of the people referred to in Article 4(1).122 The first issue is whether or not the farmers cultivating coca are directly participating in hostilities. The law of non-international armed conflict, as set out in AP2, does not distinguish between civilians and combatants. 123 Thus, a persons actual activities, and not status, should be considered when deciding if the person is directly participating in hostilities.124 As a result, the government must distinguish between those who participate directly in hostilities from those who do not. This ensures that those not taking part in hostilities are legally protected.125 The International Criminal Tribunal for the Former Yugoslavia (ICTY) has defined direct participation in hostilities as acts of war which by their nature or purpose are likely to cause actual harm to the personnel or matriel of the enemy armed forces.126 Examples of direct participation include attacking the enemys army or gathering intelligence. However, according to the ICRC, working as a civilian in an arms factory would not involve direct participation in hostilities.127 Presumably, the majority of coca farmers are not fighting in the literal sense of the term. The question remains as to whether they may be considered as directly taking part in hostilities by providing coca leaves to the armed groups, which then finance the armed conflict through the drug trade. Although the cultivation of coca helps finance the armed conflict, it is

Activities Not Prohibited by International Law

The ILC commentary makes clear that the drafters intended this first criterion to create adistinction between international liability and State responsibility. Thus, an action prohibited by international law subjects a State to international liability, whereas an action not prohibited by international law will only raise the issue of State responsibility. The action at issue in the Aerial Herbicide Spraying case is LosPueblos aerial fumigation campaign, an action that is not prohibited by any international law. Indeed, States enjoy the freedom to conduct aerial fumigations within their territory, and LosPUeblos has made use of this tactic to battle narco-terrorist groups for decades. 153 Thus, the actions ofLos PUeblos are not prohibited by international law, raising the issue of State responsibility, and therefore satisfy the first criterion of Article 1. ii. Territory, Jurisdiction and Control The second criterion is that the actions are planned or are carried out 154 in the territory or otherwise under the jurisdiction or control of a State of origin. The Draft Articles on Prevention emphasize the importance of the territorial link between the actions and the State of origin,155 territorial jurisdiction as the dominant criterion. 156 Aerial Herbicide Spraying case, it is apparent that the actions at issue occurred within Colombias territorial jurisdiction, and operated under the control of the Colombia government. It is undisputed that Colombias domestic counter-narcotics policy was aimed at coca cultivation in its southern regions, operated by the Colombian Army and other Colombian forces. Even if Colombian forces and herbicide spray crossed the border, technically outside of the Colombias territorial jurisdiction, Colombias actions remained under the control of the Colombian governmentand thus the entirety of the Plan Colombia sprayings falls under the ambit of the second criterion. In other words,the actions at issue were planned and carried out by the Colombian government, and thus, the second criterion is easily satisfied.

iii. Risk of Causing Significant Transboundary Harm In the Aerial Herbicide Spraying case, it is apparent that the actions at issue occurred within Colombias territorial jurisdiction, and operated under the control of the Colombia government. It isundisputed that Colombias domestic counternarcotics policy was aimed at coca cultivation in its southern regions, operated by the Colombian Army and other Colombian forces. Even if Colombian forces and herbicide spray crossed the border, technically outside of the Colombias territorial jurisdiction, Colombias

actions remained under the control of the Colombian government and thus the entirety of the Plan Colombia sprayings falls under the ambit of the second criterion. In other words, the actions at issue were planned and carried out by the Colombian government, and thus, the second criterion is easily satisfied. It is to be understood that significant is something more than detectable but need not be at the level of serious or substantial. 161 In the Aerial Herbicide Spraying case, it appears that the imprecise nature of aerial fumigations, including the tendency to create significant off-site drift, the non-selective nature of the chemical herbicide spray employed by Colombia, and the close proximity to Ecuadors border all weigh heavily in Ecuadors favor when considering the risk of significant transboundary harm. Taken objectively, it is clear that conducting such a massive and inherently inaccurate fumigation campaign so near to an international border necessarily involves a degree of risk. Furthermore, such a large-scale fumigation campaign is also likely to have a significant impact on the environment, especially considering the unparalleled ecological diversity of the Amazonian region at issue. Scholars tackling the issue of significant harm, particularly Gnther Handl, posit that certain types of transboundary effects involving toxic or otherwise dangerous substances affecting public health are likely to be a priori deemed significantly harmful. 162 Handl also notes that the use of geographical markers, especially the proximity of the causal activity to the border, may be prima facie indicators of the significance of the transboundary activity. 163 C. Colombias State of Necessity Defense Extending the analysis beyond Ecuadors transboundary harm claim assumes that the ICJ has recognized Colombias actions as violations of its substantive or procedural obligations, or that Colombia has admitted to violating its substantive or procedural obligations in favor of advocating a state of necessity defense. This analysis begins acknowledging the likelihood that Colombia will vigorously deny that its actions constitute a breach of its sic utere duty, and that Colombia will attack Ecuadors claims of a causal relationship between the conduct an the injury. However, as the central premise of this analysis is to take all of Ecuadors claims as true, this article has concluded that it is unlikely Colombia will prevail in arguing for its compliance with its substantive or procedural obligations of prevention pursuant to the Draft Articles on Prevention. This article asks if there a stronger, more compelling defense available to Colombia than to simply deny the elements of a successful transboundary harm claim. The short answer is yes. Colombias best defense is to assert a state of necessity, excusing it from breaching its international obligations because it acted to protect its essential interest in maintaining internal peace.

i. The Modern Necessity Doctrine

In keeping with the limited focus of this article on ICJ jurisprudence, it is best to introduce the modern doctrine of necessity in the same context. This approach points one to the aforementioned Gabcikovo-Nagymaros188 case. Prior to GabcikovoNagymaros, the ICJ had yet to speak on the status of Article 33 of the ILC Draft Articles on State Responsibility (hereinafter Draft Articles on Responsibility).189 Thus, the Draft Articles on Responsibility broaden the scope of the necessity doctrine to include circumstances in which a state is legitimately protecting any essential interest, not simply its right to existence. ii. The ICJ and Essential Interests In Gabcikovo-Nagymaros, the ICJ explicitly laid out the judicial framework for a state of necessity analysis. The courtoutlined the requirements for a valid claim of necessity as follows: In the present case, the following basic conditions set forth in Draft
Article 33 are relevant: it must have been occasioned by an essential interest of the State which is the author of the act conflicting with one of its international obligations; that interest must have been threatened by a grave and imminent peril; the act being challenged must have been the only means of safeguarding that interest; that act must not have seriously impair[ed] an essential interest of the State towards which the obligation existed; and the State which is the author of that act must not have contributed to the occurrence of the state of necessity. Those conditions reflect customary international law.192

Here, the court makes clear that it adopts the modern view of the doctrine of necessity set forth in Article 33 of the Draft Articles, and explicitly recognizes Article 33 as reflecting customary international law. This modern view accepts that any essential interest may lay a foundation for a state of necessity defense, but this begs the question of what constitutes an essential interest? The ILC Commentaries decline to enumerate essential interests and stress that the extent of an interests essential quality is left to a case-by-case analysis. 193 Professor Ago, however, provided examples of the type of interests that would satisfy Article 33s essential interest requirement in his own report, to wit: . . . political or economic survival, the continued functioning of [a states] essential services, the maintenance of internal peace, the survival of a sector of [a states] population, and the preservation of the environment or [a states] territory or a part thereof. ILC Commentary provides a similar list.195 adoption of this modern view, the ICJ had no problem recognizing vironment or its territory or a part thereof.196 Indeed, the ICJ went on to state the great significance that [the ICJ] attaches to respect for the environment, not only for States but also for the whole of mankind.197 iii. Analyzing Colombias State of Necessity Defense

The ICJ made clear in Gabcikovo-Nagymaros that a state of necessity defense is available only if the state accused of violating international law can meet all of the requirements imposed by the narrow exception carved out in Article 33 of the Draft Articles. This section will address each of the elements of a necessity claim in turn, to wit: an essential interest, a grave and imminent peril threatening that essential interest, the violation of international law as the only available means to protect that imperiled essential interest, and the balancing requirement of the protected interest and the essential interest of a State towards which the obligation was owed. Essential Interests Both the modern and the traditional views of the doctrine of necessity agree that a States self-preservation constitutes an essential interest.198 Colombia may attempt to frame its essential interest in these terms, arguing that it has waged a decades-long internal war against narcotic-funded terrorist groups, like the FARC, and that these groups put the very existence of Colombias government at risk. Indeed, some reports indicate that, at one time, the conflict ha[d] left as much as 40% of the country under the de facto control of major narcoterrorist groups.199
Boed, supra note 190, at 14. (The Court proceeded on the assumption that the threat of an ecological catastrophe could establish a state of necessity, and that such necessity could provide a valid excuse for a States conduct in violation of its international obligations.).
196

This interest, however, may not be the most persuasive essential interest Colombia could argue it was protecting.

Only Means Available The ICJ adopted the ILC view that the only means available requirement was to be strictly interpreted, implying that the peril must not have been escapable by any other means, even a more costly one, that could be adopted in compliance with international obligations.206 For example, the Court denied Hungarys necessity claim in Gabcikovo-Nagymaros is in part based on its finding that means other than breaching international obligations were available to Hungary to safeguard its interest in protecting the environment in the region. 207 In the present dispute, Colombias defense depends on a showing that conducting a multi-million dollar aerial herbicide spraying campaign was the only means available to Colombia to protect its essential interest in maintaining internal peace from the peril of the FARC insurgents. This is perhaps the most difficult requirement for Colombia to meet. While much of the U.S. foreign aid was conditioned on Colombia implementing the U.S.-favored supply control strategy emphasizing mass aerial spraying, taking aid from the U.S. was simply not Colombias only option it was only the most expensive option.

Indeed, considering the historic lack of success aerial fumigations has had in Colombia, it seems that Colombia was in a unique position to consider a variety of alternative domestic drug policies. There are many other options Colombia might choose to The Balancing Requirement Assuming, arguendo, that Colombia is able to satisfy all of the preceding requirements for a state of necessity defense, it must also show that it has not seriously impaired an essential interest of a State towards which the obligation existed - in this case - Ecuador. As Boed puts it, this requirement constitutes a balancing test: A plea of necessity is valid only if the scales tip