A Breath of Fresh Air: WTO Ruling Upholds France's Asbestos Ban, Rejects Canadian Challenge

By Laurie Kazen-Allen

For the first time in its five-year history, the World Trade Organization (WTO) has ruled in favor of public health and against free trade.

In a judgment disclosed to the litigants in June, finalized in July, and expected to be made public in September, the WTO has upheld a 1997 French ban on chrysotile asbestos, the only form of the mineral still legal in the EU. Canada had challenged this ban, arguing that the "controlled use" of chrysotile asbestos was a valid means of eliminating health risks associated with its use. The French ban thus violated WTO requirements to pursue the "least trade restrictive" means to achieve public health objectives, Canada claimed, especially since, it argued, alternative materials pose their own health risks.

Trade officials have revealed that scientists commissioned by the WTO's Dispute Settlement Panel unanimously rebutted key elements of the Canadian argument, affirming that chrysotile asbestos is a carcinogen, the concept of "controlled use" is unrealistic and safer substitutes exist.

WTO watchers suspect the decision in this case was influenced by the 1999 Seattle protests against the trade organization. A ruling against a ban on asbestos would have further weakened the WTO's political support.

Whether this decision is a one-time gesture or marks a more fundamental change in WTO jurisprudence remains to be seen. In either case, it is clear that the ruling strengthens the position of campaigners who have long contested the concept of "controlled use" for any form of asbestos.

Canada Confronts the French Ban

French Decree 96-1133 prohibited the import and use of chrysotile asbestos and all chrysotile-containing products as of January 1, 1997, prompting Canada, currently the world's leading exporter of chrysotile, to seek redress through the WTO.

Canada had taken no comparable action when other European states had, over a number of years, banned chrysotile unilaterally - Iceland in 1983, Norway 1984, Denmark 1986, Sweden 1986, Austria 1990, Netherlands 1991, Finland 1992, Italy 1992 and Germany 1993.

But France, in addition to importing 6 percent of Canada's chrysotile production, was a trusted ally, having previously led the resistance to EU restrictions on chrysotile (abortively, it turned out, when a 1999 European Union directive finally imposed a 2005 deadline for banning chrysotile and most chrysotile-containing products throughout Europe.)

The French ban was a response to the efforts of ANDEVA, a national association of asbestos victims set up both to coordinate efforts on behalf of victims and to formalize a loose coalition of workers, trade unionists, academics, scientists and environmentalists, who throughout the nineties had sought to raise awareness of the appalling asbestos legacy France faced. They demanded no less than a complete ban.

With public pressure growing, France's Labor Relations Service and the French Health Directorate asked the French Medical Research Council (INSERM) to review international studies on asbestos, academic papers, data and information on the national situation.

The ensuing report, "The Effects on Health of the Main Types of Exposure to Asbestos" concluded that all asbestos fibers, including chrysotile, are carcinogenic. Furthermore, exposure to chrysotile fibers produced an "indisputable additional mortality from mesothelioma," (an extremely aggressive cancer). The day the report was published, Jacques Barrot, the Minister of Labor, Health and Social Affairs, announced his government's U-turn. The dominance of asbestos cement, the most widely used material in France in finishing works since the end of the 1960s, was over.

The report and the French government action triggered an immediate industry reaction.

The Asbestos Institute, a Canadian body set up in 1984 to "maximize the use of existing resources in a concerted effort to defend and promote the safe use of asbestos on a global scale," went on red alert. The Asbestos Institute told members it was taking steps to counter "the impact of the French decision in Europe and at the international level." It called an emergency meeting of its Governing Council, and the Institute's European Advisory Council adopted "a strategy aimed at avoiding the adoption of an asbestos ban at the level of the European Union." The industry organized frenetic trade missions, feted foreign journalists, held quasi-scientific workshops and generally shifted its public relations efforts into overdrive.

And industry mobilized the Canadian government. Although the asbestos industry employs only 2,000 or so workers in Canada, virtually all Canadian asbestos workers reside in Quebec. To solidify Quebec's position in the Canadian federation, the Canadian federal government has bent over backwards to show its concern for maintaining these jobs. "The Canadian and Quebec governments are competing with one another to show just how prepared they are to protect Quebec jobs," says Cathy Walker, health and safety director of the Canadian Auto Workers union.

On September 17, 1996, following discussions between the Asbestos Institute and government officials, Health Canada (Canada's health department) requested that the Royal Society of Canada "convene an international expert panel to review" the INSERM report. The subsequent 95-page critique was a hastily contrived document which failed to resolve even the most basic scientific uncertainties surrounding asbestos risks.

Meanwhile, between July 1996 and May 1998, high-ranking Canadian officials lobbied community leaders, asbestos industry stakeholders, prime ministers, ministers of state, ambassadors, trade representatives, journalists and scientists from EU agencies and directorates, Belgium, France, the UK, Korea, Morocco, Brazil, South Africa, Russia, Swaziland, Zimbabwe and elsewhere. A "Chronology of Developments in the Asbestos Issue" distributed by the Canadian government shows 15 entries for meetings with UK or French politicians, academics and health and safety experts during this period.

Two days after UK Environment Minister Angela Eagle told the House of Commons in June 1997 that the Labor government intended to introduce a ban on chrysotile, Canadian Prime Minister Jean Chretien lobbied new British Prime Minister Tony Blair at the Denver G-7 summit. Chretien urged an exchange of "scientific information about the health risks associated with the use of chrysotile" as an alternative to a ban. The Canadian chronology boasts that "in February 1998, the United Kingdom announced it would be pursuing consultations on workers' safety with respect to chrysotile as opposed to announcing its intentions to ban the use of asbestos." The industry apparently regarded the delay as a crucial and possibly enduring victory.

WTO Machinations

The industry and the Canadian government apparently reached an agreement to raise the profile of the dispute, because on June 20, 1997 the Canadian delegate on the WTO's Committee on Technical Barriers to Trade (TBT) requested that France rescind its "irrational and disproportionate" ban. Columbia, Mexico and South Africa soon followed with expressions of support. After the initial saber-rattling, however, nothing much seemed to happen.

Then, on May 28, 1998, the gloves came off. The Canadian government lodged an official request with the WTO for consultations with the European Commission, the body with exclusive jurisdiction in international trade matters for member states, "concerning certain measures taken by France for the prohibition of asbestos and products containing asbestos."

"The [Canadian] government's objective is to maintain market access for chrysotile asbestos products," said Natural Resources Minister Ralph Goodale, "which are safe when used properly, according to the safe-use principle of the Government's Minerals and Metals Policy."

After bilateral talks failed, Canada asked the WTO's Dispute Settlement Body to establish an official panel.

The three-person tribunal which was convened on March 29, 1999 to hear this case was headed by Adrian Macey, New Zealand's ambassador to Thailand. The other panelists were William Ehlers, a special ambassador from Uruguay to the WTO and Ake Linden, a Swedish consultant on trade policy matters.

Canada submitted its brief in April 1999. Leading scientific and medical authorities called it factually inaccurate, substantially inaccurate, misleading, selective and wildly untruthful.

"The Canadian report," wrote Professor Julian Peto, from the Institute of Cancer Research, is "a biased political document rather than a serious scientific review."

Canada's position was supported by Brazil and Zimbabwe, also asbestos-producing countries. (Since the case began, however, Brazil has announced plans to phase out chrysotile by 2005.) The EU, which submitted its brief in May, gained the support of the United States, which no longer has any substantial asbestos-producing interests.

Throughout the summer, a persistent dispute over the commissioning of independent scientific advice dragged on. Canada objected to experts from any European country. Eventually, the two sides agreed on the appointment of one U.S. and three Australian scientists.

Although the still unpublished verdict is well-known, the official Canadian reaction has been low-key. Jacques Brassard, Quebec's Minister of Natural Resources, chose not to comment on the confidential ruling. An Ottawa spokesperson for the Department of Foreign Affairs and International Trade said, "We plan to take the time to analyze it in detail."

Industry representatives were less circumspect.

Jean Dupere, president of LAB Chrysotile, called the verdict "a very hard blow for Thetford Mines and Asbestos [town]."

Bernard Coulombe, president of the Jeffrey asbestos mine, said the ruling was illogical and excessive in upholding the "evil [the chrysotile ban] which took place in France four years ago."

Urging Canada to appeal, Andre Brochu, a trade unionist representing workers at the LAC Asbestos Mine, expressed concern about the loss of industry jobs.

The Industry Looks Ahead

Canada's challenge to the French regulation was motivated less by its concern for maintaining a grip on the French market than by fear that developing countries might follow the French lead.

The loss of French trade is not crucial to the industry; the possibility that developing nations might adopt similar prohibitions is. Currently, Asian countries buy 65 percent of Canadian chrysotile. Morocco, Tunisia and Algeria, all former French colonies, are also good customers.

Prior to the decision, an anonymous Canadian trade official, worried about the domino effect, told an Australian reporter, "If we were to lose this challenge, other countries would not be reluctant to go ahead and impose their own ban on asbestos."

Despite this ruling, one in a long line of anti-chrysotile decisions by international agencies including the World Health Organization, the industry is not ready to accept an asbestos-free future. Still peddling the party line, the Asbestos Information Center (India), Asbestos Cement Products Manufacturer's Association (India), Asbestos International Association (USA) and the Asbestos Institute of Canada will tell delegates to the "Strengthening Responsible Use" conference in New Delhi in November that chrysotile cement products have a "relevance ... for developing countries of strained economies." While an inviting brochure promises delegates pleasant weather in one of the "world's oldest and richest civilizations," no details of speakers or presentations are available.

Nigel Bryson, director of health and environment for the GMB Union, Britain's general union, is appalled but not surprised that "asbestos producers still delude themselves and, more importantly, others into thinking that exposure to chrysotile fibers can be adequately controlled."

This summer, he wrote a letter to the Indian government, the High Commission in London and the Asbestos Information Centre in New Delhi, saying, "The price difference between chrysotile and the relevant substitutes is usually not sufficient to cause economic difficulties. Saving workers' lives is a price worth paying."

Public Health Gains the Upper Hand

It may not be coincidental that the industry-sponsored event is scheduled to take place barely two months after a public health conference, "Global Asbestos Congress: Past, Present and Future," seeks to expose the fallacy of "controlled use."

Asbestos victims, their families, building workers, politicians, trade unionists, scientists, medical professionals, attorneys, engineers, academics, government officials, environmentalists, health and safety activists and other independent experts will meet in Osasco, Brazil from September 18 to September 20 to examine ways to deal with the horrific legacy asbestos has bequeathed to the new century and to generate momentum for a ban on asbestos use around the world.

Despite ongoing industry resistance, organizers of the Global Asbestos Congress are optimistic that political opinion has turned irreversibly against the global trade in the "class A" carcinogen once known as "the magic mineral."

For decades, governments chose to ignore the mounting death toll and the impartial advice of independent doctors and scientists. Such a posture is increasingly untenable. The WTO challenge may have been the last ploy in the depleted repertoire of a discredited and dying industry.

Laurie Kazan-Allen is the editor of the British Asbestos Newsletter, which has reported on asbestos issues for years.