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