WTO Upholds French Ban on Chrysotile
A landmark verdict by the World Trade Organization (WTO) has validated the rights of Member States to prohibit the import and use of goods which contain carcinogenic substances such as chrysotile (white asbestos). On March 12, 2001 the WTO’s Appellate Body (AB) issued its ruling in the case of Canada vs. the European Communities – Measures Affecting Asbestos and Asbestos-Containing Products (AB-2000-11). The AB members upheld and strengthened aspects of the Report of the Panel (September 18, 2000) while reversing, what has become known as, its "toxic logic." AB Judges Florentino Feliciano, James Bacchus and Claus-Dieter Ehlermann confirmed: chrysotile is an established carcinogen, there is no safe threshold and "controlled use" is not an effective alternative to a national ban. Pascal Lamy, European Union Trade Commissioner, said: "This ruling shows that the WTO is responsive to our citizens’ concerns. Legitimate health issues can be put above pure trade concerns. The ruling confirms that regulators can set the desired level of protection of health." Aimee Gonzales, a spokesperson for WWF International commented: "In this case, the scientific evidence supporting the French ban on asbestos was overwhelming, however the Appellate Body’s guidance on the relevance of scientific opinion confirms that all Member governments may be entitled to opt for maximum protection of humans, animals and plants even where scientists disagree as to the risks justifying protection."
For years asbestos industry apologists have maintained that their products can be used safely. The "controlled use" mantra has been at the heart of attempts to preserve markets threatened by growing international awareness of the repercussions of continued asbestos use. National bans were, according to the industry, over-reactions to misinformation disseminated by scientists and campaigners intent on "engendering widespread fibre-phobia." The Asbestos Institute, set up in 1984 to "maximize the use of existing resources in a concerted effort to defend and promote the safe use of asbestos on a global scale," is still peddling this line. On March 12, its Director, Denis Hamel, told journalists that depriving developing countries of chrysotile’s multifarious benefits would increase mortality rates. The AB ruling has demolished the "controlled use" smokescreen: "WTO Members have the right to determine the level of protection of health that they consider appropriate in a given situation. France has determined, and the Panel accepted, that the chosen level of health protection by France is a ‘halt’ to the spread of asbestos-related health risks. By prohibiting all forms of amphibole asbestos, and by severely restricting the use of chrysotile asbestos, the measure at issue is clearly designed and apt to achieve that level of health protection." Hammering the final nail into the "controlled use" coffin, the AB ruling said: "the efficacy of ‘controlled use’ is particularly doubtful for the building industry and for DIY enthusiasts, which are the most important users of cement-based products containing chrysotile asbestos."
It is important to note that the AB reversed the original ruling’s convoluted reasoning which equated chrysotile and chrysotile-cement products with safer alternatives containing PVA, cellulose and glass fibres. In September, 2000 Panel members Adrian Macey, William Ehlers and Ake Linden chose to ignore chrysotile's toxicity, chemical composition, physical structure and consumer attitudes focusing instead on: "the end-use of the products (which) should affect the way in which we examine the properties of the fibres." According to Macey et al, in examining the concept of "likeness," the health risk was an irrelevance within the meaning of Article III of The General Agreement on Tariffs and Trade 1994 (the GATT 1994). The Appellate Judges disagreed, highlighting the need to examine the molecular structure, chemical composition, fibrillation capacity, health risks, consumers’ tastes and habits and tariff classifications in assessing "likeness": "In examining the physical properties of the two sets of cement-based products, it cannot be ignored that one set of products contains a fibre known to be highly carcinogenic, while the other does not… We, therefore, reverse the Panel’s finding… that these health risks are not relevant in examining the ‘likeness’ of the cement-based products."
The AB findings have been welcomed despite lingering concerns over some aspects of the decision and WTO procedural matters such as the refusal to accept NGO submissions and the method of selecting expert witnesses. Reversing the original Panel’s ruling, the AB agreed with Canada that the French ban constituted a "technical regulation" under the 1994 Technical Barriers to Trade Agreement (TBT). Although the TBT was intended to further the objectives of the GATT 1994, the TBT "imposes obligations on Members that seem to be different from, and additional to, the obligations imposed on Members under the GATT 1994." Having decided that general prohibitions are subject to TBT regulations, the AB refrained from taking the analysis any further. Theoretically, Canada could bring a TBT challenge against the French or other national chrysotile bans; such an action would be the first WTO case brought under the TBT. Since re-trying the chrysotile case would involve an attempt to refloat the discredited "like" products analysis, it seems an unlikely prospect. Also worrying, however, are the implications of the AB’s support for the rights of Members to claim compensation for measures which adversely affect trade regardless of the reasons for the restrictions. Thus, even if a national prohibition is legitimately adopted on health grounds, "the measure may give rise to a cause of action under Article XXIII:l(b) of the GATT." Barry Castleman, a consultant to the EC legal defense team, is happy with the victory but worried about the future: "I fear that talk of the WTO understanding the need for the precautionary principle and allowing the maximum protection of humans from toxic substances in the face of scientific dispute is wildly optimistic. Look at the politics and the economics. This case was won because the WTO desperately wanted to look like they care about something more than free trade after the protests in Seattle. Canada was virtually alone in their defence of chrysotile lacking any powerful multinational corporations for allies and facing the USA and the EU as opponents. We may not be so lucky next time."
May 5, 2001
