SOME ASSOCIATIONS FOR THE PROTECTION OF HEALTH AND ENVIRONMENT CRITICIZE THE WTO ON AMIANTHUS.
GENEVA-- Environmental groups have criticized a World Trade
Organization ruling concerning a French ban on imports of chrysotile
(or white) asbestos arguing that the WTO has placed too many
conditions on the use of trade-restrictive measures needed to protect
public health.
In a decision made public Sept. 18, a three-member WTO panel
rejected a Canadian complaint against the ban by concluding that
France's actions were justified under Article XX (b) of the 1994
General
Agreement on Tariffs and Trade providing a general exemption to WTO
rules for measures considered necessary to protect human, animal or
plant life or health.
The ruling was circulated on a confidential basis to Canada and the
European Union, which defended France in the WTO proceedings, on
July 25.
Although the panel ruling is the first by the WTO upholding a trade-
restrictive measure on public health grounds, three environmental
groups warned in a joint statement Sept. 18 that "the reasoning
behind
the result sets a dangerous precedent."
"The Panel cleared the ban only after first initially finding that
the
French trade restrictions violated the WTO's basic rules that require
all
imported products to be treated fairly," said the World Wide Fund for
Nature (WWF), the London-based Foundation for International
Environmental Law and Development, and the Geneva-based Center for
International Environmental Law. "France was then required to justify
its "violation" through an exception to the WTO rules, based on the
protection of public health."
Canada has already announced that it will appeal the panel's
findings.
Canada is the world's third leading producer of chrysotile asbestos,
with annual sales valued at C$200 million. Chrysotile asbestos is
used
in underground pipes, shingles and friction products such as brake
linings, disc brake, and clutch pads.
Most EU member states already have banned the import, sale, and
use of all types of asbestos. The European Commission itself has
decided to impose an EU-wide ban on chrysotile asbestos, the last
form of asbestos still allowed for use in the EU, starting in January
2005.
According to the EU, around 2,000 people in France die each year
from cancer caused by asbestos exposure, with the figure for the EU
as a whole running into the tens of thousands.
At issue in the case was French Decree No. 96-1133 of Dec. 24, 1996,
imposing a ban on the manufacture, import, and sale of chrysotile
asbestos. Certain exceptions to the ban apply for applications where
safer substitutes do not exist.
Environmental Groups Focus
The main focus of the environmental groups' criticisms was the
panel's
finding that chrysotile-fiber products and less dangerous
alternatives
such as celluose, glass fibers, and PVA (an asbestos-cement
substitute) are "like" products within the meaning of Article III:4
of
GATT, and that the products should be treated equally within a
member country's domestic market in line with the WTO's national
treatment principle.
The panel added that France violated the national treatment principle
by treating imported Canadian asbestos differently than domestically-
produced substitutes, which were not subject to the ban. However, the
panel went on to say that the French ban was justified by the Article
XX(b) public health exemption.
"Imported concrete containing carcinogenic asbestos, according to the
panel, is "like" domestically produced concrete containing non-toxic
cellulose, and to treat them differently violates Canada's right to
access French markets," the environmental groups noted. "The burden
then shifted to France to prove that it was entitled to an exception
to
WTO rules in order to protect human health... In other words, once
the
principle of free trade was secured, the public health was left to
bear
the burden of proof."
"If the same reasoning is applied to future disputes, it may prevent
governments from distinguishing between toxic and non-toxic products
on the basis that they have the same end-uses," the environmental
groups added. "In circumstances where evidence of the threat to
public
health is less obvious than is the case with asbestos, a trade-biased
panel may deny the importing government an exception. This approach
will endanger democratic choices in important areas of social,
environmental, or cultural policies."
In its interpretation of the Article XX(b) exemption, the panel said
it was
up to the EU to make the case that the French ban was justified by a
risk to human health and that the objective of protecting human
health
could not be achieved through less trade-restrictive measures.
In regards to the first condition, the panel concluded that the EU
had
successfully shown the interdiction was justified on public health
grounds and was not put into place to protect French producers of
"like" products.
The "carcinogenicity of chrysotile fibers has been acknowledged for
some time by international bodies," the panel noted. "This
carcinogenicity was confirmed by the experts consulted by the Panel,
with respect to both lung cancers and mesotheliomas...We therefore
consider that we have sufficient evidence that there is in fact a
serious
carcinogenic risk associated with the inhalation of chrysotile
fibers."
Prima Facie Health Risk
The EU "has made a prima facie case for the existence of a health
risk
in connection with the use of chrysotile, in particular as regards
lung
cancer and mesothelioma in the occupational sectors downstream of
production and processing and for the public in general in relation
to
chrysotile-cement products," the panel added. "This prima facie case
has not been rebutted by Canada...The Panel therefore considers that
the EU has shown that the policy of prohibiting chrysotile asbestos
implemented by the (1996) Decree falls within the range of policies
designed to protect human life or health."
The panel then went on to reject Canada's argument that France could
have resorted to less trade-restrictive measures to achieve its
public
health aims, in particular through the adoption of controlled use
practices for workers handling chrysotile asbestos.
"(A)lthough controlled use is applied in some countries, such as the
United States or Canada, and has also been applied by France, in
general in certain sectors its efficacy still remains to be
demonstrated," the panel declared. "This is confirmed by a number of
studies, as well as by the comments of the experts. Thus, even though
it seems possible to apply controlled use successfully upstream
(mining and manufacturing) or downstream (removal and destruction) of
product use, it would seem to be much less easy to apply it in the
building sector, which is one of the areas more particularly targeted
by
the measures contained in the Decree."
The panel also rejected Canada's claim that France was creating a
"false sense of security" by requiring chrysotile asbestos to be
replaced by products whose effects on human health are less certain.
The "substitute fibers examined in the context of this case (PVA,
cellulose, and glass) are not classified by the WHO [World Health
Organization] at the same level of risk as chrysotile," the panel
noted.
"Moreover, the experts consulted by the Panel who commented in
detail on the risks associated with the substitute fibers examined in
the context of this case (PVA, cellulose and glass) and other fibers,
(in
particular aramid and ceramic) confirmed that these fibers did not
present the same risk to health as chrysotile."
"Canada's approach seems to be based on the fact that chrysotile can
be used safely," the panel continued. "As we have already concluded,
this does not appear to be a reasonably available possibility...If we
were to follow Canada's reasoning, then substitute fibers could not
be
used until a degree of certainty equivalent to that which exists with
respect to chrysotile had been established."
" In the opinion of the Panel, to make the adoption of health
measures
concerning a definite risk depend upon establishing with certainty a
risk already assessed as being lower than that created by chrysotile
would have the effect of preventing any possibility of legislating in
the
field of public health," the panel added. "In fact, it would mean
waiting
until scientific certainty, which is often difficult to achieve, had
been
established over the whole of a particular field before public health
measures could be implemented."
Focus of Canadian Appeal
In commenting on the panel's ruling, Canadian International Trade
Minister Pierre Pettigrew said in a Sept. 18 statement that the
government believes sufficient legal ground exists for appeal of
certain
points in the panel's final report.
The appeal will also permit Canada to seek clarification of the scope
of
the WTO Agreement on Technical Barriers to Trade, which Canada,
unlike the dispute panel, believes must apply to general bans on
products such as France's ban on asbestos, the statement said.
Canada believes that the panel exceeded its mandate in making the
ruling, as it was only to determine whether France's ban on asbestos
was contrary to its multilateral trade commitments but was not to
rule
on the safety of using chrysotile asbestos or on the principle of
safe
use of such products, it said.
"The panel determined that the French measure banning asbestos was
discriminatory, but that it was necessary to protect French workers
at
a level deemed appropriate by France," it said. "Canada continues to
argue that the French approach is excessive, and that the safe use
approach is sufficient to ensure the health and safety of workers and
the public."
The statement stressed that Canada does not dispute the right of a
country to adopt regulations in the public interest or to set
appropriate
levels of protection for public health reasons, but said that Canada
stands by its support for application of the safe use principle to
all
minerals and metals, including chrysotile asbestos, as the principle
has a solid scientific basis and constitutes a responsible
approach.
By Daniel Pruzin and Peter Menyasz
20/09/2000