The WTO: Who Needs Friends?
Scrutinize this list of reputable international groups and individuals and see if you can work out what they have in common:
The American Public Health Association
The Society of Occupational and Environmental Health (SOEH)
The Occupational and Environmental Diseases Association
The International Confederation of Free Trade Unions (ICFTU)
The European Trade Union Confederation (ETUC)
The Australian Centre for Environmental Law
The International Ban Asbestos Secretariat
The Ban Asbestos Virtual Network
Worldwide Fund for Nature
Foundation for International Environmental Law and Development
The Center for International Environmental Law
Robert L. Howse, professor of international law at the University of Michigan Law School
Give up? Answer: they all made recent unsuccessful applications to submit so-called amicus curiae (friends of the court) briefs or simply amicus briefs to the WTO Appellate Body in the asbestos case brought by Canada against. France. As some of the applications were joint efforts, the groups listed accounted for a total of seven submissions. Of these, five were summarily rejected by the Appellate Body Secretariat (AB); when further clarification was sought, none was forthcoming. The remaining two rejections were time-barred by the arbitrary imposition of a Central European time zone deadline. The previously vague cut-off (The Additional Procedure Adopted Under Rule 16(1) of the Working Procedures for Appellate Review stated only: "Any person, whether natural or legal, other than a party or a third party to this dispute, wishing to file a written brief with the Appellate Body, must apply for leave to file such a brief from the Appellate Body by noon on Thursday, 16 November, 2000") further reinforced the increasingly popular view that the WTO was making the new procedures up as it went along. So although the SOEH brief was faxed before the US Eastern Coast deadline, it was received and rejected after the Central European deadline. Similarly, the joint ICFTU and ETUC submission arrived half an hour late.
WTO sources have confirmed that all seventeen applications received were rejected, but are unwilling to divulge the identities of the submitting parties. Judging by previous experience, it is reasonable to assume that some of the unidentified ten were industry-backed groups. On September 18, 2000 the three-man adjudicating tribunal (called a "panel") issued their 465 page report in the case: European Communities - Measures Affecting Asbestos and Asbestos-containing Products. On page 390, it was revealed that amicus briefs had been received from: The Collegium Ramazzini, the Ban Asbestos Network, the Instituto Mexicano de Fibro-Industrias A.C, the American Federation of Labor and Congress and Only Nature Endures (ONE). At that time, no official policy existed for dealing with non-party input, although in recent cases such submissions had been considered by previous panels and appellate judges. A temporary solution was found in the chrysotile case when the EC notified the panel of its desire to incorporate the briefs from the Collegium Ramazzini and the American Federation of Labor and Congress into its evidence while rejecting the submissions from the Ban Asbestos Network and the Instituto Mexicano de Fibro-Industrias A.C. The written brief from ONE was rejected as being out of time. In recent months, more information about the work of this unknown group from Mumbai, India has come to light. ONE's representative, Joy Manglani, one-time director of ACP Industries, travels the world spreading disinformation about asbestos. On June 26, 2000, I interviewed him in London; at that time he presented himself as an "independent consultant," interested in collecting scientific evidence about asbestos cement water pipes. He had sought enlightenment in Moscow, Paris, London and Switzerland. In London he advanced a spurious argument which he later reiterated in Osasco, Brazil from the floor of the Global Asbestos Congress. Manglani claimed that as many asbestos industry executives had now accepted the need to convert to non-asbestos technology, the "anti-asbestos lobby" was actually playing into their hands by campaigning for a universal ban. It didn't make much sense in London last Summer, nor does it now.
Although "unrequested submissions by private parties" had been received in eight WTO Panel cases, never before had the input of non-governmental organisations (NGOs) and other interested parties been facilitated by the adoption of "an additional procedure to deal with any written briefs received by the Appellate Body from persons other than a party or third party to this dispute." The application procedure, which was sanctioned only for the chrysotile case, was described in a one and a half page document entitled: Communication from the Appellate Body: WT/DS135/9. Potential participants were given eight days and three pages in which to convince the AB that they might "make a contribution to the resolution of this dispute that is not likely to be repetitive of what has already been submitted by a party or third party to this dispute." The seeming departure from an infamously closed system was ostensibly being promoted "in the interests of fairness and orderly procedure in the conduct of this appeal." Publicly the WTO was becoming more responsive and transparent; privately, the imposition of the new system was tailor-made to manage unwelcomed interference by non-members of this exclusive club of 139 national governments. Between October 23, when Canada notified the Dispute Settlement Body that it was to appeal the panel's chrysotile decision, and November 8, when the regulations for lodging an application appeared on the WTO website, the AB Division had received thirteen unsolicited briefs. Adoption of the procedure enabled the Division to return all of them; if you want to re-submit, the NGOs were told, you must follow the new protocol. The AB, aided and abetted by ingenious new rules and "deliberately stringent" criteria had constructed a big, shiny get-out clause: "your application … has been denied for failure to comply sufficiently with all the requirements set forth in paragraph 3 of the Additional Procedure." Seasoned WTO observers maintain that this theory assumes a degree of consistency uncharacteristic of the WTO. No sooner had details of the AB's additional procedure appeared on the WTO website, then a storm of controversy blew up which led to the organization's first constitutional crisis. The AB was accused of appropriating the Members' rule-making powers. The Egyptian Ambassador called for a Special General Council Meeting with one subject on the agenda: "the additional procedure adopted by the Appellate Body in an appeal now being heard by the Appellate Body." At the November 22 meeting, the representative from Pakistan called for the resignation of the AB's Chairman. Although there was a consensus against the alleged lack of consultation by the AB, the status quo was upheld by the reluctance of the US to support any immediate action.
Had leave been granted to file a written brief with the Appellate Body in this case, submissions would have been due by noon on November 27. Although this window of opportunity has gone, it is still worth considering the following options:
1. contact representatives of the EU to enquire about the possibility of incorporating the NGO brief in the EU submission;
2. contact representatives of interested third parties, e.g. Brazil or the United States, about the possibility of incorporating the NGO brief in their submissions;
3. obtain the names and email addresses of the three Appellate judges hearing the appeal and email amicus briefs to them;
4. bombard the press with information about the WTO's total disregard for the millions of victims of asbestos disease worldwide and its lack of concern for the environment, public health and safety.
December 3, 2000