NGOs Submit AMICUS Brief to WTO Appellate Body on Asbestos:

A coalition of environmental and health NGOs has filed an amicus curiae (’friend of the court’) submission to the WTO Appellate Body (AB) in the dispute between Canada and the EU regarding the French ban on the import of asbestos (see BRIDGES Weekly, 19 September 2001). The submission is the second attempt by the coalition to have its views heard in the proceedings after the AB refused their first request for leave to file a written submission in November last year, arguing that the submission did not comply with the specified requirements (see BRIDGES Weekly, 28 November 2001).

In a statement accompanying the submission, the NGOs — which include the Foundation for International Environmental Law and Development (FIELD) on behalf of Ban Asbestos (International and Virtual) Network, Greenpeace International, International Ban Asbestos Secretariat, and World Wide Fund for Nature (International) — stated their continued belief that they met each requirement and accordingly took this opportunity “to demonstrate in full, with the enclosed brief, what we were unable to demonstrate to the Appellate Body’s satisfaction in the Application for Leave”. They furthermore outlined the reasons why the second submission was “pertinent and useful” and should therefore be accepted by the AB. In the submission itself, the NGOs supported the decision of the AB which upheld the French ban as compatible with WTO rules, but also stated that the “Panel made certain errors of law in its application of customary rules of treaty interpretation of public international law under the Vienna Convention.” The submission is available online at:http://www.field.org.uk/papers/tepap.htm.

ICTSD Internal Files

Source: International Centre for Trade and Sustainable Development (ICTSD). 13 February 2001

http://ictsd.org/i/news/bridgesweekly/87773/ 

Interim Report Issued in Canada-France Asbestos Case:

Environmentalists have welcomed a leaked WTO interim report on a case between France and Canada involving a French ban on imports of Canadian chrysotile (white) asbestos. In the report, the adjudicating panel has rejected Canada’s claim that the ban constitutes an unnecessary obstacle to trade under Article 2 of the WTO agreement on Technical Barriers to Trade, arguing that the ban is not a technical regulation and therefore does not fall under the scope of the agreement. The ruling favours the position of the European Union (EU), which represents France at the WTO.

The panel has stated that although the French ban was incompatible with national treatment provisions outlined in Article III of the General Agreement on Tariffs and Trade (GATT), France nevertheless had a right to apply the ban under GATT Article XX (b) (General Exceptions). According to one specialist in international environmental law, “The finding is important. It’s one thing to say that a health measure does not violate WTO rules. It’s quite another to say that it does violate WTO rules but that it qualifies for an exception, where the burden of proof is higher.”

According to Article XX (b), there is nothing in the GATT that prevents “the adoption or enforcement by any contracting party of measures…necessary to protect human, animal or plant life or health.” Until now, no WTO dispute settlement panel has allowed a WTO Member to use this article to impose trade measures.

The case dates back to 1996, when France banned imports and use of chrysotile asbestos. In 1998, Canada moved to challenge the ban at the WTO on behalf of its Quebec-based asbestos industry, which is the world’s second largest producer and the largest exporter of chrysotile asbestos. The interim report is only a preliminary decision, but no WTO panel to date has reversed interim findings in the final ruling. The final decision is expected to be forwarded to Canada and the EU sometime in July. It will be circulated to other WTO Members and made public several weeks thereafter. The panel had originally been expected to decide the case in December 1999, but the panel’s chairman Adrian Macey (New Zealand) indicated on 7 March that the panel needed more time to complete its work.

Throughout the dispute, Canada has argued that France’s outright ban is not based on adequate science and that the ban is contrary to international trade rules. The Canadian government has also argued that chrysotile asbestos is safer than many alternative products, and that it is perfectly safe to use and install if adequate safety measures are taken. Canada also contends that other uses of the asbestos — such as incorporating the fibres into asbestos cement — are safe.

The EU argues that asbestos claims the lives of about 2,000 people in France each year. The EU also conducted a risk assessment of using asbestos in cement, and found that other fibres pose less of a health risk. According to trade officials, the five scientific experts consulted by the panel unanimously agreed with the EU that chrysotile asbestos is carcinogenic and dangerous to human health.

Though a ban on white asbestos is already in place in nine of the 15 EU member states, and while France represents only about five percent of Canada’s asbestos exports, Canada is most concerned about other countries taking up a ban, particularly its Latin American and Asian trading partners.

Environmentalists welcomed the decision by the WTO panel. Remi Parmentier, the head of the political unit for Greenpeace International, has said that a final ruling in favour of the French asbestos ban would set an important precedent in favour of environmental and public health concerns, but that it should not be interpreted as a sudden “greening” of the WTO. Geneva-based legal experts remarked that “WTO panels are now doing their job: interpreting Article XX exceptions in the way the Dispute Settlement Understanding indicates” and that “this ruling could open up a big window of opportunity. Article XX (b) applies to human, animal, and plant life, which can just about cover anything.”

Labour bodies also recognise this decision as one in their favour. The Brussels-based International Confederation of Free Trade Unions has said that the finding, if confirmed, would give new impetus to a worldwide workers’ campaign for a global ban on chrysotile asbestos.

“WTO upholds white asbestos ban,” FINANCIAL TIMES, 15 June 2000; Canada said losing WTO asbestos case against France,” REUTERS, 14 June 2000; “WTO Interim Panel Report Said to Find Against Canada in French Asbestos Case,” WTO REPORTER, 14 June 2000; “WTO panel rules against Canada on French asbestos ban,” UNITED PRESS INTERNATIONAL, 13 June 2000; WTO Ruling on Asbestos Ruling Welcomed By Environmentalists, But Lawyers Doubtful,” WTO REPORTER, 16 June 2000; “EU wins right to keep asbestos ban against Canada,” BRIDGE NEWS, 13 June 2000; “Health Tops Free Trade in WTO Ruling,” INTERNATIONAL HERALD TRIBUNE, 16 June 2000; “Global labour body hails WTO asbestos ruling,” REUTERS, 15 June 2000; “WTO Upholds French Ban on Canadian Asbestos,” DOW JONES NEWSWIRES, 14 June 2000.ICTSD Internal Files

Source: International Centre for Trade and Sustainable Development (ICTSD). 20 June 2000

http://ictsd.org/i/news/bridgesweekly/89236/

UK, EU Consider Asbestos Ban:

The European Commission (EC) is considering an EU-wide ban on white asbestos (chrysotile), according to EU industry commissioner Martin Bangemann. Mr. Bangemann is quoted in the EC’s July meeting notes as saying that, “The Commission is preparing a draft proposal for a European-wide ban on the marketing and use of chrysotile asbestos and asbestos-containing products.” However, at a meeting earlier this year, Greece, Spain and Portugal expressed opposition to a complete ban, about which Mr. Bangemann noted that, “some exceptions and temporary derogations” may be necessary to get a ban passed.

Currently, eight of the 15 EU member-states have banned chrysotile asbestos. Britain last week announced it too was considering a ban: members of the UK construction workers union protested outside the UK Health and Safety Commission, calling for an immediate ban on the use of chrysotile asbestos.

The UK Health and Safety Commission will next month release a consultation paper proposing the ban on the supply, use and importation of chrysotile asbestos beginning in 2001. The Commission’s proposals are intended to “strengthen the existing legal duty to prevent exposure where reasonably practicable,” and would “significantly reduce future potential for asbestos related disease.” Upon release, the proposals will be subject to a three-month consultation period.

Canada, the world’s second largest producer of chrysotile asbestos behind Russia, this spring asked for formal consultations at the WTO against the French ban on chrysotile asbestos.(See BRIDGES Weekly Trade News Digest, vol. 2, no. 20). Consultations formally began in July. France, like other EU members, imposed the ban on health grounds. Extended exposure to high concentrations of asbestos is known to cause lung problems and cancer.

Canada argues that asbestos-related illness occurs through asbestos insulation blown into walls–a common practice earlier in the century, but banned in most markets since 1970. Ninety percent of Canadian asbestos exports are chrysotile asbestos used in cement, which keeps asbestos fibres from getting into the air. Other major exporters of chrysotile asbestos include Brazil, South Africa, Swaziland and Zimbabwe.

“EU drafting ban on white asbestos, Canada wary,” REUTERS, August 20, 1998; “Ban on use of asbestos comes closer,” FINANCIAL TIMES, August 19, 1998; “Canada threatens asbestos war with UK,” ENVIRONMENT NEWS SERVICE, August 21, 1998

Source: International Centre for Trade and Sustainable Development (ICTSD).24th August 1998

http://ictsd.org/i/news/bridgesweekly/93078/ 

Japanese shipbreaking breaks workers in the Philippines:

The globalization of economic activity and the accelerating international division of work, has lead to the dumping of hazardous and less profitable industries from industrialized or emerging industrial countries onto unprotected and vulnerable regions in less developed countries. Typical of such industries is shipbuilding. Four years ago, a Japanese shipbuilding company, Tsuneishi Heavy Industries Inc., developed an industrial zone, West Cebu Industrial Park (WCIP), in the West Cebu Island in the Philippines. A local developer was contracted by Tsuneishi to operate a shipbreaking dock there.

Shipbreaking is usually performed in a dry dock to prevent toxic substances, including asbestos, polychlorinated biphenyl (PCB), lead and tin, from polluting the environment. Tsuneishi invested in the WCIP because of the relatively loose regulations applied on the island, and the cheaper labor available. In fact, ships are dismantled in the sea there, and there are no effective measures to prevent pollution.

Some Japanese labor unions and citizens groups, concerned about the activities of Japanese companies overseas, have been following this case, and the above-mentioned toxic substances have been identified in the soil around the region. When revealed, this pollution raised fears among local people, who demanded more information about the actual state of their environment.

On February 12-13, 1998, a seminar on the "Effects of Shipbuilding Operations at WCIP on the Workers and Environment" was organized in West Sebu. More than 300 local people, including fishermen, workers and other residents, participated in it.

On the 12th, a member of one of the environmentalist groups from Japan reported the results of their sampling and analysis, concluding that the pollutants were highly likely to be derived from the shipbreaking operations taking place in the sea off the island.

A researcher from Japan supported the conclusion by indicating that tributyl tin (TBT) and triphenyl tin (TPT) used to coat the bottoms of ships, and which are being called into question worldwide because of their suspected endocrine disrupting action were detected in the polluted soil.

In addition, I reported that the first asbestosis case in Taiwan, which had long been the top country in the shipbuilding industry, was that of a shipyard worker who had been engaged in shipbuilding and breaking for 40 years. The 1^st Korean asbestosis victim was also a shipbuilding worker.

In fact, asbestos-induced health hazards had also been reported among workers in the former US naval bases in the Philippines.

During the seminar the local participants had an opportunity to discuss these problems with representatives of the companies concerned, and government officials. The general manager of Cebu Industrial Park Development Inc.(CIPDI) denied that WCIP firms dumped the toxic substances in the bay. He claimed that the bay had already been polluted before WCIP was established. Eventually, however, he promised to present the results of the Japanese study to the multi-party monitoring committee created to check WCIP's compliance with environment laws.

An official of the Department of Environment and Natural Resources (DENR) admitted that there were no regulations applicable to the pollutants. A provincial board member said that he would conduct a legislative investigation for policy changes.

The WCIP problem has just begun to call people's attention to their living and occupational environments. Their efforts to investigate the causes of the pollution there will continue further. Our stance, of course, is and will be on the side of local people.

Samples taken from soil and sea at West Cebu:

Sample	No. 1	No.2
TBT (tributyl tin)	4.86 mg/kg	13.6 mg/kg
TPT(triphenyl tin)	8.01 mg/kg	22.3 mg/kg
Lead	6.70mg/kg	13.8 mg/kg
PCB	0.07 mg/kg	0.16 mg/kg

Source: Japan Occupational Safety and Health Resource Center (JOSHRC), JOSHRC Newsletter No.14 (Mar, 1998). By FURUYA Sugio; JOSHRC General Secretary

http://www.jca.apc.org/joshrc/english/14-2.html