The WTO asbestos dispute: workplace health dictated by trade rules? 

Laurent Vogel



Canada’s complaint against France’s asbestos ban raised a question of principle far beyond the issue at hand. Can the WTO limit states’ sovereign rights to pass labour, environmental and health protection rules? Beyond whatever practical outcome the case has, there is a high risk connected with the current state of WTO international trade rules. This article briefly traces the causes of the asbestos ban in France, going on to look at WTO dispute settlement procedures and the specific provisions applicable in the present instance. It concludes with one or two remarks on the Community’s inconsistent policy towards the WTO.

"After a long period of commercial intercourse, there appear among the crowd of barbarians both good persons and bad, unevenly. Consequently there are those who smuggle opium to seduce the Chinese people and so cause the spread of the poison to all provinces. Such persons who only care to profit themselves, and disregard their harm to others, are not tolerated by the laws of heaven and are unanimously hated by human beings. "Even though the barbarians may not necessarily intend to do us harm, yet in coveting profit to an extreme, they have no regard for injuring others. Let us ask, where is your conscience?"  1

Letter from Lin Zexu, Emperor of China’s special
envoy to Canton to Queen Victoria, 1839

1. The asbestos ban in France

The word "asbestos" covers a range of types of mineral fibre some of whose properties (durability, tensile strength, heat- and fire-resistance) have been valued since antiquity. From about 1880, asbestos came into widespread industrial use. Major deposits in Canada and Russia were mined. The French and English textile industries produced fireproof fabrics of woven asbestos fibres. Asbestos use quickly spread to many other branches of manufacturing industry (brake linings, filters, heat-resistant seals, etc...). Its main use today is in building and civil engineering materials (asbestos cement boards and pipes) while spray insulation techniques (firing asbestos fibres mixed with a binding agent to make a surface covering) is declining. There are just a handful of producer countries. In 1993, six countries accounted for over 96% of world production - the former USSR 2 (54.6% of world production in 1993), Canada (16.4%), Brazil (8%), China (8%), Zimbabwe (4.8%) and South Africa (4.2%)  3.

The disastrous health effects of asbestos were known about early on. A British factory inspector briefly noted the dangers of asbestos fibres in 1898. In 1906, a French factory inspector, Denis Auribault, reported fifty asbestos-related deaths in an asbestos spinning and weaving factory in Calvados. In the same year, a British doctor, Dr Montague Murray, reported on the danger of an asbestos-related disease - asbestosis. Despite his report, it was not recognized as an occupational disease.

Examples abound to show how far prevention policies have always lagged hugely behind the scientific and medical evidence  4. Only organised labour can take government inertia to task. While the same is true of most other work-related diseases ("phossy jaw" caused by white phosphorous, silicosis and musculoskeletal disorders spring to mind), that lag will have particularly disastrous consequences where asbestos is concerned. Data analysed by the epidemiologist Julian Peto (1995) show that between 1995 and 2020 Britain alone will suffer 50,000 mesothelioma deaths and 100,000 deaths from other asbestos-related cancers.

The main asbestos-related diseases are asbestosis, an irreversible pulmonary fibrosis which reduces the lungs’ capacity to deliver oxygen to the system properly, lung cancer and pleural cancers (mesothelioma). These diseases have relatively long latency periods (about 15 years for asbestosis, up to 40 years for mesothelioma). The causal relationship between occupational exposure and developing the disease is hard to prove.

Labour struggles against asbestos use were stepped up from the Sixties onwards 5. In France, the sit-in at the Amisol factory in 1974 played a key role. The employer preferred to file for bankruptcy rather than improve safety conditions. Amisol’s workers (over three quarters of them women) decided to take over the factory. During their 31 month occupation, there were twelve deaths from asbestos. A trade union survey revealed other previous deaths from the same cause which had passed unnoticed. After Amisol came Jussieu faculty. Since 1975, a joint union group there has been fighting for asbestos removal, supported by different voluntary organizations like ALERT (workplace hazards study), FNATH (national federation for industrial injury victims and the disabled) and ANDEVA (national association of asbestos victims).

Pressure from employers meant that early legislation in France and the European Union went no further than controlling asbestos use, i.e., permitting its use subject to compliance with certain rules of industrial hygiene (particularly by limiting acceptable exposure levels). Limited bans were also brought in (on certain processes like spraying 6, and certain categories of fibre).

This low level of prevention is largely down to economic considerations. Asbestos is a cheap material. Much of the production chain is in the hands of a few multinational corporations (Saint-Gobain, Eternit in particular) with an inordinate amount of influence. Also, public health officials have long regarded immediately visible benefits (asbestos’ fire prevention effectiveness) as more important than less-visible long-term consequences. Several dozen people killed in a fire is a disaster which demands an immediate political response; hundreds of thousands of silent deaths "hidden away" in the general death rate are easily written off as the price of progress.

Faced with a rising ground swell of opposition to asbestos use, the multinationals followed a three-pronged strategy throughout the Eighties.

  • Progressive withdrawal from markets in western Europe and the United States. Unable to refute the acute public health problem created by asbestos, the firms concerned had no choice but to pull discreetly out of developed countries’ markets. In Belgium, for instance, asbestos imports fell from 85,000 tonnes in 1973 to 26,000 tonnes in 1990 down to 9,575 tonnes in 1993 7. The asbestos lobby’s fierce opposition to an outright ban was due less to the economic importance of declining markets than to avoid a precedent which might spread and influence government attitudes in other parts of the world. At the same time, the asbestos market expanded rapidly in Asia, Africa and Latin America, often fuelled by massive investment by the firms who were pulling out of the European market. Brazil’s main asbestos mine was bought by a joint venture owned by Eternit and Saint-Gobain. A German company, the Hamburg-based Handelsgesellschaft GmbH, made a failed bid for Russia’s biggest asbestos mine (Uralasbest). Third World countries plus Central and Eastern Europe now account for over 80% of asbestos consumption 8. Given the inability of these countries to enforce strict safety rules right down the production chain, the magnitude of the health disaster waiting to happen can readily be imagined. Even Canada - magnanimously or cautiously? - uses virtually none of its output, shipping most of it to Third World countries - of the 510,800 tonnes of chrysotile (white asbestos) produced in 1995, 509,575 tonnes were sold for export 9.

  • Fostering persistent uncertainty about the real dangers of asbestos among the research community. Various studies, not all of them above reproach in terms of scientific ethics, have attempted to show that the dangers of asbestos or certain types of asbestos have been exaggerated 10. The demand for a total consensus among the scientific community has served both to dilute employers’ real responsibilities for the death toll ("no-one can know for sure") and slow down policy-making ("do nothing without asking the experts"). This strategy has been combined with a focus on a real problem: the risks linked to substitute mineral fibres.

  • Attempt to set up pressure groups for the "safe" use of asbestos. The aim was to stop asbestos employers being cut off from the rest by forming alliances with some trade unions (in the name of preserving jobs), professional groups of prevention practitioners (to develop the market for controlled use), occupational health doctors with close links to employers, etc. These strategies managed to fend off an asbestos ban for many years, but ultimately forfeited all credibility over the last decade. Only in Canada has a sort of holy alliance held up around asbestos between industry employers and a section of the trade union movement 11. One reason for this is to be found in the unexpected connection between the defence of asbestos and the issue of Quebec nationhood. Quebec is the centre of asbestos production, and Quebec nationalists have repeatedly insisted that the federal executive should not abandon Quebec asbestos. It is a poor nationalism that will look for that kind of support to uphold its identity or "difference"! 12

This strategy long paid off in Europe. There were various reasons why a European consensus finally formed in favour of an all-out asbestos ban. Experience in the first countries to ban asbestos showed that the technical problems inherent in the use of substitute products had been hugely overestimated. Convergent epidemiological data indicated that no kind of asbestos could be regarded as safe. Finally, the product life-cycle focus showed that occupational hygiene measures taken in the initial production stage were inadequate because the finished product (e.g., asbestos cement insulating sheets or pipes) would undergo later processing and changes (human action or gradual wear and tear) which would release fibres into the atmosphere. The build-up of asbestos in a large number of different applications was therefore creating a real public health time-bomb. The growing cost of asbestos removal and the fears of huge law-suits by victims created an awakening awareness among some sections of employers.

This was the background to the French government’s decision to ban asbestos use, foreshadowed in July 1996, and made law by a Decree of 24 December 1996. Shortly after, a debate was engaged in the EU institutions, and on 27 July 1999, the Commission adopted a Directive outlawing asbestos 13. It was supported by twelve of the fifteen Member States. The opposition was led by Mr Aznar’s Spanish government, backed by Portugal and Greece.

2. Canada’s WTO complaint

a) Canada’s complaint
The French Decree caused deep dismay among asbestos producers and users. Over and above the immediate commercial issue, it augured that a turning point had been reached. France had had Europe’s strongest pro-asbestos lobby. After years of patient and thankless labour struggle, the balance of power had suddenly tilted. The French government had reviewed the issue (entrusted to INSERM) and rapidly brought in the necessary preventive measures. It could set a dangerous precedent which might spread to Third World countries. More than the measure per se (France was, after all, only ever the tenth European country to ban asbestos 14), it was the potential consequences that had to be contained - the intolerable anarchy whereby the struggle of victims might ultimately impede the freedom of economic players and upset the marketplace rules of the road!

1997 and the first half of 1998 were dominated by diplomatic manoeuvring: Canadian attempts to win British and US support, contacts with other asbestos-producing countries in the hope of forming an alliance, promoting an industry-backed network to influence sections of the scientific and trade union community. All to little avail. The Blair government hung fire to begin with, saying that it had to consult experts, but eventually distanced itself from the Canadian positions. The United States decided to sit on the fence, not least because of the rising number of law suits against asbestos-using firms. The united front of producing countries never came into being. The only high-profile name to be brought on-side was the Brazilian President F. H. Cardoso, but even his own Environment Minister, Mr Sarney, came down in favour of outlawing asbestos! 15 Scientists and trade unionists were simply treated to a handful of conferences and generous study trips. For trade unions, the position taken by the Brazilian confederations was decisive. Despite being held to ransom over jobs, their clear support for an asbestos ban reinforced the same line taken by the international trade unions. The scientific community began to turn against asbestos, too, throwing the asbestos lobby into disarray.

Against this background, Canada notified its complaint against the European Communities to the WTO Dispute Settlement Body (DSB) 16.

b) the WTO dispute settlement system
To get a proper handle on this dispute, a few words must be said about the dispute settlement system established when the WTO was set up in 1995. Basically, WTO rules systematize and progressively extend the different GATT agreements negotiated since 1947. But the WTO is far more instrumental for multinational firms and dominant countries in a globalizing economy. The decision-making rules have been changed so as to more easily sidestep the reservations of states who feel their interests are being brushed aside. WTO procedures seek to concentrate the powers to order trade, in a reflection of world economic realities where strategic power is increasingly concentrated and class, gender and national divides are widening apace. The proponents of good governance claimed it was illogical to keep the framework of inter-state relations which was the legacy of decolonization and the East-West divide.

One area of new ground broken by the WTO is that new rounds of talks on extending the scope of liberalized trade can in future be started up by a straight majority vote, whereas GATT required the unanimous agreement of all states. Unlike GATT, WTO membership involves an "all-in commitment": states can no longer pick and choose which agreements to join 17. They must join all the multilateral agreements negotiated in the Uruguay Round. This is highly restrictive for the dominated countries, which had always tried to keep some elbow room to make free-standing choices of which rules to observe in certain areas of a globalized economy. Now, they cannot: either they join the WTO and fall in line with all the agreements concluded, or they stay outside it, with the risk of pariah status in the world economy. The case made by WTO apologists that it would constitute a truly multilateral framework for developing common rules is belied in practice. The 1996 Singapore and 1998 Geneva ministerial conferences showed that entire agenda was set in informal meetings between the dominant countries (United States, European Union, Canada, Japan).

What is surprising about the operation of the WTO is that the concentration of powers is underpinned by extremely discrete quasi-judicial mechanisms, largely left to experts and operating through fairly hasty procedures not open to public scrutiny. The dispute settlement system is a major innovation over the GATT rules. It is based on three bodies: the Dispute Settlement Body (DSB), Panels and the Appellate Body. Panels are ad hoc groups of three to five experts jointly appointed by the parties to a dispute from a list drawn up by the WTO Secretariat. If they cannot agree, the WTO Director General appoints the panel experts. The Appellate Body comprises seven experts appointed by the DSB.

The main stages of the procedure can be summarised as follows. When a state complains about the rules or practices of another state, a consultation procedure is opened. If they fail to reach agreement within 60 days, the DSB appoints a panel, which has six months to draw up a report after hearing evidence from the parties in dispute and any interested third countries. This report is sent to the DSB, which can adopt it or reject it. It can only be rejected by unanimous vote of the DSB. That has never yet occurred. Either side can appeal a panel’s ruling. This procedure has to be completed within 90 days. The Appellate Body deals with points of law only. The Appellate Body’s report may be adopted by the DSB or rejected by unanimous vote of its members. If the complaint is upheld, the "offending" state must state what action it will take to comply within a reasonable period of time. If it fails to act, the parties will have to agree on economic compensation. If they cannot, the DSB may authorise sanctions. None of the procedure is open to public scrutiny: it essentially relies on the opinions of "international trade experts" who tend not to take things like fundamental rights into account. The United Nations specialized agencies tend to have no say in the procedures, even for matters falling within their remit (in the asbestos affair, the International Labour Organization was not included, despite having drawn up Conventions on carcinogens and asbestos). It is also a very costly procedure, and it is not unknown for multinationals to share in the costs of expertise and contribute to the costs of the procedure. Hence the disproportionate number of complaints made by developed countries compared to those initiated by dominated countries. A WTO overview on 1 February 2000 found that of 181 pending requests, 135 were complaints from developed countries (predominantly the United States), 36 complaints from "developing countries" and 10 "hybrid" (joint complaints by developed and "developing" countries). The trade sanctions machinery is totally unsuited to dominated countries which have little interest in cutting off their own imports, so in practice, dominated countries tend to forego their sanctions option.

Pace that claims of WTO advocates, its dispute settlement system has not got rid of one-sided retaliation by dominant countries. It simply adds a string to their bow. If a complaint to the WTO rests on flimsy legal grounds, political pressure and one-sided retaliation remain the rule 18. The European Union has not challenged this state of affairs. Its attitude back in 1996 in the DS38 affair on the Helms-Burton Act is telling. This United States statute allows sanctions to be applied unilaterally outside the jurisdiction against firms trading with Cuba. Instead of letting the procedure takes its course to a decision against the United States (highly probable given the solid legal bases of the complaint), the Commission engaged bilateral talks to shelter European from retaliations by its American partner without attacking the measure itself, which can still be applied to firms in other countries.

c) a scientifically flawed case
Canada’s scientific case, is deeply flawed. It centres essentially on three points.

  • Chrysotile (the type of asbestos produced in Canada) is fundamentally different from other types of asbestos. Chrysotile presents no significant hazards when used within OSH standards.

  • Compliance with exposure limits for chrysotile is an effective preventive measure.

  • Substitute fibres also constitute a hazard which has not been adequately assessed.

The first two arguments are self-contradictory. Chrysotile is also a hazard, as most studies on asbestos show. So much was accepted by an official Canadian commission of inquiry in the early '80s, which concluded that "all fibre types can cause all asbestos-related diseases, but mesothelioma is most likely to result from crocidolite exposure, has a strong association with amosite exposure, and has a weak association with chrysotile exposure" 19. The Canadian approach feigns ignorance of the asbestos product life cycle. It is irresponsible to create the risk of possible later use in manufacturing or waste treatment in breach of OSH standards. This is all the more important when today, most asbestos products are manufactured in countries with high job insecurity and large informal sectors. As regards carcinogens, there is no scientific evidence to show that compliance with exposure limits is itself a sufficient guarantee. Coherent prevention means not treating a threshold limit value as a barrier below which there is zero-risk. This is what underlies the demand that carcinogens be replaced by non-carcinogenic substitutes.

The third argument is more weighty, but not enough to throw the asbestos ban open to question. Substitute fibre are less dangerous than asbestos, but that is clearly no reason to underestimate their inherent dangers.

d) the Agreement on Technical Barriers to Trade (TBT)
The gist of Canada’s case is based on legal considerations related to world trade rules. The problem with the WTO is that this type of argument tends to brush aside all considerations about the public health or environmental impacts of a measure.

Canada is asking the WTO for a ruling that the French Decree banning asbestos is incompatible with the rules of the Agreement on Technical Barriers to Trade (TBT). Other potentially relevant agreements are not considered in this article. Significantly, this is the first request to the WTO for a ruling in a dispute involving the TBT.

The TBT’s purpose is to stop states adopting technical regulations which would create obstacles to world trade. The scope of "technical regulations" is extremely wide and covers any "document which lays down product characteristics or their related processes and production methods, including the applicable administrative provisions, with which compliance is mandatory" (point 1 of Annex 1 to the TBT).

This will clearly include many of the national regulations made to protect health, safety or the environment. To comply with the Agreement, such regulations must satisfy various requirements. In the case of the French Prohibition of Asbestos Decree, Canada’s case turns around the following articles in particular 20.

Article 2.1 prohibits discriminatory treatment between like products of national origin and like products originating in any other member country. Little needs to be said on this point, where the Canadian case seems extremely shaky. The asbestos ban did not discriminate by reference to the origin of products. And asbestos substitutes are so varied that it is hard to classify them as products "like" asbestos.

Article 2.2 stipulates that technical regulations must not be with a view to or with the effect of creating unnecessary obstacles to international trade. This, it says, means that they must not be more trade-restrictive than necessary to fulfil a legitimate objective, taking account of the risks non-fulfilment would create. It says that such risks must be assessed taking into consideration such things as available scientific and technical information, related processing technology or intended end-uses of products.

This article curtails the discretion of public authorities far more severely than prevailing EU provisions. It sets very tough standards (e.g., it is enough for the regulation to have the effect of creating unnecessary obstacles to international trade, even if its general thrust is not protectionist), while at the same time investing the WTO dispute settlement bodies with inordinate power.

Canada’s case in the asbestos dispute centres largely around the risk assessment concept, and gives it an interpretation which severely restricts the scope of policy-making. Canada argues that the policy measures adopted must be based on scientific expertise, whose function would not simply be to study a problem and inform decision-making, but to constitute a binding framework. There is nothing new here. Risk assessment has frequently been used as a device to deregulate occupational health in the United States. The United Kingdom took a similar line in seeking to have the Community Working Time Directive set aside. But, in its ruling of 12 November 1996, the Court of Justice of the European Communities clearly reaffirmed the dividing line between scientific proof and policy-making 21.

Article 2.4 provides that: "Where technical regulations are required and relevant international standards exist or their completion is imminent, Members shall use them, or the relevant parts of them, as a basis for their technical regulations except when such international standards or relevant parts would be an ineffective or inappropriate means for the fulfilment of the legitimate objectives pursued (...)".

The problem raised by this article is that most existing occupational health standards are minimum requirements. The ILO Conventions taken together do not lay down a single rule unto itself, but a bottom limit above which states are free to set more favourable rules. Convention C162 does not ban asbestos. It sets basic rules for protection where asbestos is used. But here, if you can more, you can do less: some states who have outlawed asbestos have certainly not infringed the provisions of Convention C162 (which still has to be complied with in asbestos removal operations, for instance).

The Community legal system takes a more balanced approach to this problem, inasmuch as its labour rules are intended to harmonize national ones at a minimum level, leaving the Member States free to maintain or introduce measures giving workers a higher level of protection, while total harmonization measures (especially on market regulation) are subject to safeguard clauses 22 which enable states to uphold higher interests (human life and health, the environment, etc.) on markedly less restrictive terms than the WTO agreements.

Clearly, it is impossible to say which way the DSB will jump in this case. It cannot be second-guessed from what little information has filtered out of the panel hearings, which are held behind closed doors. It does appear that the European Community’s scientific case (supported in this instance by the United States) was far more cogent and persuasive than Canada’s (half-heartedly backed by Brazil and Zimbabwe). On the other hand, Canada’s legal arguments exploit real flaws in the WTO Agreements or, to be specific, their consistent free trade bias which regards any national regulations based on other considerations (like health and the environment) as suspect. The vague wording gives the panels and Appellate Body a disturbing measure of power, and their ruling can only be overturned by unanimous vote in the DSB. It is not unthinkable that, in this case, the WTO may shrink back from the great political moment of ruling against the asbestos ban while nevertheless asserting its full authority on questions which are not chiefly world trade matters.

The European Union’s game plan

The European Union is taking the entire defence of the French decree upon itself. For a start, a ruling in Canada’s favour would be a potential threat to its own regulations on the matter. But this legal support is not being matched by active political backing. The European Union seems to be keeping a low profile in this affair, which is being monitored only by a handful of specialists. To the best of my knowledge, neither the Parliament nor the Council has been forthcoming on the matter. The low level of Community support probably reflects conflicting desires to maintain provisions which protect public health in the EU’s own territory and its support for the WTO. After all, were the decision to go against the European Union in this case, as it previously did in the growth hormones affair 23, it would be under agreements which it has ratified and a procedure which it defends and is quick to employ against other states.

Looking beyond the asbestos question, the full set of WTO agreements needs looking at to see how far they throw into question the acquis communautaire (established body of Community laws and regulations) on occupational health, public health and the environment. As stated earlier, there are manifest conflicts between the different WTO agreements and the Treaty provisions.

The Commission has always shied away from carrying out an impact assessment of the WTO agreements on Community law. At every stage of negotiations, it pressed for a sufficiently vague and general negotiating brief not to have to lay down a clear course of action. Once the agreements were concluded, it contented itself with an overall assessment of the expected benefits of free trade. As guardian of the Treaties, it behoved the Commission to consider whether the agreements it had signed were compatible with many provisions of the Treaty and secondary legislation.

In its preparations for the "millennium round", the Commission made mumbling noises about some points of the agreements it regarded as not up to scratch. Its policy towards the TBT agreement was chiefly to promote existing international standards (a risky strategy, in my view) and clarify existing definitions and provisions. In particular, it thought that "Health, consumer safety, and environmental issues, already covered in the existing Agreement, need to be strengthened in a manner that ensures the right balance between prompt, proportional action, where justified, and the avoidance of unjustified precaution" 24. This hardly committed it to much.

Only in the field of food safety did the Commission, probably still stinging under Europe’s defeat in the hormones dispute, propose clarification along the lines of recognition of the precautionary principle.

After the failure of the Seattle Summit, the Prodi Commission went into a blind headlong rush. It cast aside its own - albeit modest - reservations and, in a recent document on the precautionary principle, went so far as to say that "each Member of the WTO has the independent right to determine the level of environmental or health protection they consider appropriate. Consequently a member may apply measures, including measures based on the precautionary principle, which lead to a higher level of protection than that provided for in the relevant international standards or recommendations" 25, and that recent developments in certain affairs dealt with by the WTO confirm this. It would certainly be nice if this were so, but the Commission more than anyone should know that the reality of the WTO is not that simple.

The EU’s on again/off again relations with the WTO raises a more fundamental issue. The EU’s approach to globalization purports both to preserve a measure of sovereignty and force dominated countries to accept the ground rules of dominant countries and their multinational firms. It is outrageous for Canada to use free trade rules against public health in the asbestos dispute. It puts it in direct line with a tradition stretching back to the shameful opium wars in the 19th century. But the European Union has had no qualms about another affair which essentially centres around the same issue - its own (successful) WTO complaint against India over pharmaceutical patents 26. Compelling issues are at stake in this case. It is no secret that some multinationals are doing very nicely thank-you out of patenting medicines used in the fight against AIDS. Prohibitive pricing denies treatment to most people living with AIDS. The European Union claimed that the Indian regulations, aiming to shelter the development of a home-grown pharmaceutical industry, harmed its own trade interests. One decisive factor in this affair was the problems encountered by the Glaxo-Wellcome pharmaceutical group in patenting and securing a marketing monopoly for valaciclovir, an antiviral therapy especially for certain AIDS-related opportunistic infections. Beyond this immediate issue also lay the danger for the competitiveness of European capital to see its positions weakened across the entire pharmaceutical product and agricultural chemicals market. It is no secret that the catastrophic AIDS epidemic has prompted some Third World countries to try and develop a pharmaceutical production industry to provide more local access to treatments. India is one such, but other disputes have already arisen with Thailand and South Africa 27. It is an area where the European Union has been quick to side with commercial profit, even if the alternative is condemning millions of people to death. The fact is that if the pharmaceutical industry keeps its monopoly on marketing and maintains its high profit pricing policy, most people living with AIDS will never get effective treatment 28. The EU’s reference to the WTO is making sure this stays the case. Hopefully, by calling attention to these facts, the asbestos case will not give rise to solidarities of fortune. If protection of human life is to take precedence over market-driven rules, this principle must apply equally to all humankind, including when it is detrimental to the economic interests of "our" European firms.



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1 History provides the answer: British gunboats destroyed Chinese towns to open up the Middle Kingdom to the benefits of free trade.

2 Since the collapse of the Soviet Union, the two main producer republics have been Russia and Kazakhstan.

3 ECOLO-CEFE, 1997, p. 17.

4 Carnevale and Chellini (1993) describe how advances in scientific knowledge about the health effects of asbestos have always outdistanced the adoption of coherent prevention rules.

5 A good description of them can be found in Collectif... (1977).

6 Denmark was the first country to ban spraying in 1972.

7 ECOLO-CEFE, 1996, p. 21.

8 Figures cited by Jorma Rantanen in FIOH, 1997. The actual figures vary with the sources consulted, but point to the same general trends: the Third World and former Soviet Bloc countries’ share of asbestos consumption has risen steadily as western European and North American markets have contracted. The main export markets for Russia and Kazakhstan are China, Poland, Iran, Romania and Vietnam (figures for 1994-1997).

9 According to Asbestos Institute figures, in 1995, the four leading net importers of chrysotile from Canada were Japan, Thailand, Korea and India. These four countries between them accounted for almost half of Canadian asbestos exports. The same institute reports that the asbestos cement used in the Quebec building industry is imported, while asbestos use by manufacturing industry accounts for only 6,000 tonnes a year.

10 On the activities of the pro-asbestos medical and scientific lobby, see in particular Castleman (2000) and Nay (1997).

11 On the position of the Quebec trade unions, see CSD, CSN, FTQ (1997).

12 See in particular the article in the Quebec daily "Le Soleil" of 2 June 1999 on the Canadian federal government’s refusal to allow Quebec to be represented at the WTO hearings on asbestos, to the effect that the "Quebec Minister of State for the Economy and Finance, Bernard Landry, condemned the federal government’s "graceless and inefficient" stubbornness and fanaticism. In his view, "Canada is acting against its own interest and against those of Quebec", by not allowing the main asbestos producing province to take part in the proceedings. Together, he said, Canada and Quebec would be "a stronger team" (unofficial translation).

13 The ins and outs of the Community discussions are not considered here. They were reported in a series of articles in the TUTB Newsletter between December 1997 and June 1999. They can be consulted on the Internet: Directive 1999/77 (OJ, L 262, p. 18, of 6 August 1999) is based on the Commission’s independent regulatory powers to adapt Directive 76/769 relating to restrictions on the marketing and use of certain dangerous substances and preparations to technical progress (OJ, L 262, 201, of 27 September 1976).


14 Bans which preceded that of France were: Iceland (1983), Norway (1984), Denmark (1986), Sweden (1986), Austria (1990), Netherlands (1991), Finland (1992), Italy (1992), Germany (1993). Belgium fell in line in 1998. These national measures often differ as to time-limits and exceptions.

15 See: Ministro decide proibir uso de amianto no País, O Estado de Sao Paulo, 29 July 1999.

16 The European Communities have exclusive powers in relation to international trade relations and so represent each Member State in disputes referred to the WTO.

17 With exceptions, however: the multilateral agreements annexed to the agreement setting up the WTO bind only the states that sign up to them.

18 See, infra, the United States’ measures against Thailand and South Africa for challenges to the market in treatments for AIDS-related diseases.

19 See Ontario Royal Commission on Asbestos, 1984, p. 8

20 For an overview of the controversial provisions, see Zia-Zarifi and Footer, 1999.

21 See my article in Année Sociale, 1997.

22 The original article 36 of the Treaty of Rome (now article 30 since the Amsterdam Treaty) was such a safeguard clause, authorising restrictions on free trade if justified by higher interests. The essential requirements are that it should be in good faith (no "disguised restrictions"), proportionate and not discriminatory. Article 100A, introduced by the Single European Act in 1987, strengthened the safeguard machinery where harmonization directives were to be adopted. The new article 95 clarifies and develops the way in which safeguard clauses are to be used. The former article 130R also authorizes safeguard clauses in environmental matters.

23 For a detailed analysis of which, see Warêgne (1999).

24 See Commission, 1999, p. 17.

25 Commission, 2000, p. 11.

26 The Indian dispute (DS79/1) was based on the rules of the WTO Agreement Trade Related Aspects of Intellectual Property Rights (often referred to as the TRIPS Agreement). The European Union submitted a request for consultations dated 28 April 1997 in respect of the alleged absence in India of patent protection for pharmaceutical and agricultural chemical products, and the absence of formal systems that permit the filing of patent applications of and provide exclusive marketing rights for such products. (The United States had made a similar complaint in DS50 for which the panel and Appellate Body reports were adopted on 16 January 1998). On 9 September 1997, the EU requested the establishment of a panel. At its meeting on 16 October 1997, the DSB established a panel. The US reserved its third-party rights. The panel ruled in the European Union’s favour on the system of patent protection and the guarantee of exclusive marketing rights. The DSB adopted the panel’s report at its meeting of 2 September 1998.

27 The disputes with Thailand and South Africa have not resulted in WTO procedures. But the United States government has brought strong pressure to bear to stop these countries producing AIDS treatments using a compulsory licensing system set up under the 1883 Paris Convention for the Protection of Industrial Property. The current Democrat presidential hopeful, Mr Gore, has been a leading apologist for the pharmaceutical firms’ monopoly, and was regularly called to account by AIDS organisations over the Clinton administration’s cynical stance on the matter.

28 World Bank published estimates suggest that the annual cost of giving all people with AIDS access to triple therapy at current market prices would amount to between $100 and 160 billion in sub-Saharan Africa, $57 to 90 billion in Southeast Asia and $9 to 14 billion in Latin America (K. Floyd, Ch. Gilks, Cost and Financing Aspects of Providing Anti-retroviral Therapy: A Background Paper, consultable on

June 10, 2000



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