The WTO Asbestos Case and its Health and Trade Implications
What is the Asbestos case Really About?
This case is a challenge by Canada to a complete ban on all uses of all types of asbestos by France. Canada argues that banning asbestos is a disproportionate and an unnecessarily extreme measure, because regulation (i.e. "controlled use") of asbestos can render the remaining hazards to workers and society "undetectable" and, hence, acceptable. The case is fundamental for the WTO. It is expected to have at least two important consequences: first, on the WTO legal system and its capacity to promote trade interests at the expense of human health; and, second, on the power of developing countries to intervene effectively to control hazardous working conditions and environmental health hazards in their territories.
Significantly, the United States has sided with the European Union against Canada in asking the WTO panel to dismiss this complaint, saying that it is the right of each nation to determine the acceptable degree of risk that is tolerable in its territory and to determine the appropriate level of protection for its citizens. This position is explained by the fact that there is probably not a single large corporation left in the U.S. that cares what happens to the asbestos industry in the 21st century, because liability and regulation have all but ended the use of asbestos in the United States.
We are dealing here with the leading known cause of occupational cancer in human populations all over the world, one of the most thoroughly studied toxic dusts ever breathed. If the WTO panel finds that there isn't enough evidence to ban the use of asbestos (mainly used in building panels and pipes and vehicle brakes, hazardous uses where safer substitutes are available), what can be banned? This case is thus about much more than banning asbestos. It is about whether a country has the sovereign right to ban the use of a dangerous product, even if strictly applied "controlled use" could reduce the risk to workers and the public to a level that the exporting country (i.e. Canada) would consider acceptable (for others, if not in its territory, which exports 97 percent of all asbestos mined). Simply put, this case is about the limits which the WTO Agreements impose on countries wishing to keep out of their territory products which are known to be dangerous, even when their controlled use, if strictly applied, could reduce substantially but not eliminate the risk to workers.
But what credibility does anyone have, talking about controlled use of asbestos? Governments across Europe have already rejected the argument that "controlled use" of asbestos-cement products in building construction, maintenance and demolition can really work satisfactorily in practice. And what government can assure that tens of thousands of brake mechanics will all stop grinding brakes and using compressed-air
hoses in doing brake repairs? Will the free-trade fundamentalists at WTO have the wisdom to take account of the limitations of even the best-written regulations in protecting workers and the general public from widespread, mortal, silent health hazards like asbestos dust?
Despite the fact that this case concerns, strictly legally speaking, only the ban applied by France, the decision of the World Trade Organization (WTO) panel will undoubtedly have serious implications for any WTO country wishing to ban asbestos in its territory. A decision in Canada's favor would threaten national bans across Europe and beyond.
The real target of the case is the Third World, mainly Asian countries that are the major importers of Canadian asbestos today. Canada has in reality no expectation of resuming significant exports of asbestos to France or to most of the other developed countries even if successful in the case. So the case is of primary importance for the developing countries, and most of all it affects the workers in those countries. It is also clear that Canada doesn't want Third World countries asking why they should use a product so deadly that it is now scheduled to be banned by all countries in the European Union by 2005. But it is important to note that the WTO panel will not be taking testimony about the technical feasibility of applying "controlled use" of asbestos in Asia, Africa and Latin America, where uncontrolled use is the norm. So there's a dangerous difference between what this case is formally about and what it is really about, a difference that calls into question the honor of the Canadian government as well as the role and operating principles of the WTO in making decisions with such far-reaching implications and consequences.
A decision in the case is expected in July, 2000.
The Asbestos case like all other cases decided by the WTO panels in Geneva so far raises the fundamental issue of transparency. In fact, the entire dispute settlement system of the WTO in Geneva is conducted under complete secrecy. This is contrary to any democratic concept and system of law of which we are aware. In any national or international system of dispute resolution, the hearing of the case by the court is fully open to the public. But this is not so in the WTO, where the hearings of the panels and the Appellate Body are held behind firmly closed doors.
Also as a rule, the statements of the parties to the panels and the Appellate Body are confidential unless the parties themselves release them to the public. Yet, cases like the Asbestos case can profoundly affect the lives and welfare of millions of people without them having the slightest clue of what is going on in Geneva.
NGOs have no right to participate in the proceedings and make their views known. They may send amicus curiae submissions, but there is no legal guarantee that their submissions will be taken into account by the panels unless a country in the dispute explicitly requests the panel to do so. This is clearly unacceptable and insufficient. The breadth and effect of the WTO agreements are enormous, and of course NGOs cannot trust national governments to properly represent their views or their constituencies in human rights, worker protection, consumer protection, and environmental protection in the proceedings. This should change immediately.
Scientific Evidence and Scientific Expertise
When a case raises scientific issues, WTO panels are given the power to request the advice of scientific experts. But the names of the scientists selected to advise the panel, the scientists’ disclosures of possible conflicts of interest, the questions proposed to the scientists, the answers the scientists give, the comments by the parties on the quality and bias of the answers and experts, and then the exchanges that go on at a panel hearing on scientific issues are all strictly confidential.
The panels have made an extensive use of this "expert" option in five cases so far. But we know how subjective scientific advice can be, depending on the knowledge, experience, professional standards and ethical concerns of the selected scientists. In addition, there are formidable difficulties in achieving a process of selection of scientists that is fair and where all conflicts of interest are disclosed if not eliminated. All these tricky questions are handled by the panelists or, to tell the truth, by the invisible WTO staff (secretariat) assisting the panelists with no transparency at all, as explained above. We also know from our national legal systems that well-trained and experienced professional judges face enormous difficulties in deciding cases raising complex scientific questions. How then is a non-trained and inexperienced trade diplomat going to judge a complex case, like this on asbestos or possibly one on genetically modified organisms, within a space of six months? It is obvious that the WTO dispute settlement system needs immediate fixing before it completely breaks down or continues producing scientifically flawed and socially disastrous results.
The Weaknesses of the WTO Process
Complex scientific questions that normally take between 4 to 7 years to be decided in national legal systems are decided by the WTO in Geneva within a few months. WTO procedures force resolution of the most intractable problems in one year, and appeals are decided in 6 more months.
Panel members are selected from lists of names recommended by WTO member countries. They are a mixture of retired trade officials or still-busy trade diplomats, lawyers, economists, etc. It may be a once-in-a-lifetime job to be a panel member and doesn't pay much at all. These people mostly have no legal background and some are way too busy to read all the hundreds or thousands of pages of specialised documents submitted in these cases. Though it might appear that the panelists selected to decide the case are judges, the reality is that none of them is actually a judge or has specific training on how to go about deciding a case, let alone a complex scientific case. The 3 members of a panel are typically two busy trade diplomats and a lawyer.
Inevitably, the real work is in fact done by faceless bureaucrats within the WTO secretariat. Most of these WTO employees are political scientists, economists and lawyers. There are no scientists employed by WTO. One would think that the WTO employees, most of whom are sent there by their national governments and have no permanent status, would be susceptible to influence by their national governments and business interests, lacking as they are in expertise in technical areas under discussion. Are there rules to safeguard against national trade interests, business lobbyists, consultants, and collaborating academics having contact with WTO staff? The companies are not, strictly speaking, parties in these cases, which are litigated by governments.
To sum up, the WTO system with its dispute settlement process has acquired too much power and authority which now affect practically all aspects of life of the ordinary people. Most importantly, WTO’s decisions directly affect human health and the environment. Yet, its entire operation is carried on in complete secrecy and totally lacks democratic control. The charter and orientation of WTO gives priority to eliminating trade barriers but gives too little consideration to serious consequences in the areas of human rights and the protection of workers, consumers, and the environment. This system simply cannot go on like this. The stakes are too high for all of us who care about our health, our environment, the poor and the excluded to let it go on uncontrolled.
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Barry Castleman, ScD
Presented on Environment and Health Day, Seattle, November 29, 1999.
December 1, 2000