only NATURE endures
(Promoter of Sustainable Technologies)
501, Rahimtoola House, 7, Homji Street, Fort, (Bombay) Mumbai - 400 001, India.
Tel.: 91-22-2671870 / 34, TeleFax: 91-22-2671797.
E-mail: mail@onenature.com Website: www.onenature.com

Asb Art WTO 2001-07-05

ONE is an NGO promoting sustainable technologies and has had the opportunity to interact with the WTO up close on its asbestos cement technology sub-project. By virtue of its remarkable characteristics, asbestos has the potential to develop into a technology with fantastic futuristic applications, and our keenness in due credence being given to it made us interact with those involved in getting asbestos trade banned via the WTO. This interaction has been an enlightening one in many ways. It has led us to make several interesting observations worth note in the general context of WTO functioning and NGO involvement in its proceedings. We wish to share these experiences humbly in an attempt to identify problem areas and seek collaboration and resources to help sort these out.

Research abandoned based on unfounded fears
Asbestos has been publicized as a major occupational health hazard leading to severe respiratory disorders on continued inhalation. Here it is interesting to note that asbestos is a natural mineral fibre found in two thirds of the rocks in the earth's crust & in the natural air, soil and water. Natural sources of asbestos release more fibres into the air than industrial sources do. We breathe thousands and drink millions of fibres everyday. Besides, it has been proved that asbestos is likely to be inhaled when it is in the loose dry form, which is rare in present working conditions. For example, when bound with cement, asbestos and cement, both being silicates form a virtually inseparable bond and thus asbestos fibre does not separate, even if asbestos cement is cut or powdered. The misconceptions regarding asbestos abound and these have led to even technologists abandoning further research in the field seeing no future in its development.

Monopolistic tendency of industry leaders
The asbestos industry has, the world over, remained one largely dominated by a few players and these few have monopolized the trade scene for quite sometime. The monopolists feared the entry of new players and thus became very keen to evade competition. The best method they believed was to become anti-asbestos (selectively and discreetly) on the grounds that it was hazardous. This for them would ensure the fact that they remained leaders for as long as the industry survived. Rather than lose out to competition they would kill the asbestos industry itself and move into alternative industrial products.

Cartel formation
There has always been a tendency of member countries to form cartels to achieve common perceived interests. This tendency is exemplified by the stands taken by the those directly or indirectly (third party) involved in the Ban Asbestos case. Canada, under apparent pressure from its labour echelons, moved WTO to challenge France’s ban on its imports of asbestos from Canada. France banned asbestos on the grounds that it was a major environmental and occupational health hazard. We call this a perceived interest because, the fact remains that developed nations like France and Canada have and will continue to have the infrastructural potential to become market leaders in any field they choose to. In the light of this fact, their paucity of asbestos in the natural resource form (compared to several developing countries) was no cause for either of them to feel threatened in terms of market share and dominance. To ensure this dominance there seemed to be an effort to get together to wipe out the asbestos industry as it were, making sure that the developing nations do not eventually end up becoming the main players in the industry. The cartel formation was especially evident in the selection of technical experts to consult in the case as all were recognized and well known as being from the anti-asbestos camp.
The Unites States judicial system countered the problem of such cartel formation through introduction of a system called “friends of the court”. This allowed a submission from parties other than those directly involved in the case. The submission, being from a neutral source, could prove valuable in prevention of a cartel taking a case any which way it desired. There is no provision for such a submission being taken into consideration in matters related to the WTO’s trade disputes and as a result the environment is conducive to cartel formation to suit mutual interests of the parties involved. ONE faced this problem when trying to submit information that was critical to the case and that would have great bearing on the eventual judgement.

Tendency to buckle under pressure
Of note is that ONE had solid technically-sound documentation that could win the case for asbestos and Canada. This documentation was provided to Canada and supposedly presented by them but did not earn more than a passing mention in the eventual judgement. In neither the interim, review, nor appeal stages was this solid data given credence and eventually considered.

ONE submitted concrete evidence, which included safety assurances from respected bodies WHO, ATSDR, American Medical Association and the like. But this evidence was not taken into consideration on the grounds of it being a late submission of substantive data, which was not supposedly disallowed. ONE’s submission was indicative of a procedural error that was being made with regard to not properly examining scientific facts and comparing asbestos to other fibres, which do not substitute asbestos in practice, while assessing its hazard potential. Several other errors that went against the WTO ideology itself were also highlighted; like the fact that ISO safety standards were still in place for the use of asbestos, when while banning a product/substance the first step to be taken was withdrawing the existing standards for its use.

From these instances, the external pressures apparently influencing the dispute settlement body of the WTO become evident. In the same vein, all 200 trade dispute judgements prior to this were in favour of trade and put the WTO under fire from NGOs and public interest groups. There was tremendous pressure that this judgement should then be against the infamous asbestos. The verdict against asbestos that stands today is reflective tendency of WTO to fall prey to pressure from lobbies and in the process ignore substantial and solid scientific data.

Technically challenged
A glaringly neglected and therefore vulnerable area of the WTO is its absence of strong neutral technical backing. There is no in-house technical team and decisions are thus taken by consulting persons selected by mutual agreement of parties involved. In the asbestos case, the experts, with due respect to their credentials and capabilities, were all known to be from the anti-asbestos lobby. Their analysis, however unbiased, left room for doubt and therefore makes it imperative for the WTO to give external technical and scientific analysis its place in its functional structure.

Absence of scope to challenge judgements in an external legal setup
Even in the presence of concrete scientific evidence proving the safety of asbestos over alternatively used materials like PVC, fibreglass, ductile iron, etc. the WTO ban on asbestos remains an impasse. In the event of an erroneous judgement there is no available recourse to ensure that justice be done. Even The US Courts (Fifth Circuit), in 1991 vacated & reversed the EPA’s ban on asbestos because EPA’s analysis was found to be “unscientific” and “incomplete” and noted that alternatives like plastics and metals posed much larger risks. This notwithstanding, there still is no scope for reversal or modifications in the final WTO verdict even in the presence of such gravely compelling data.

Where do we go from here?
The WTO needs to consciously work at revamping its organizational functioning if it means to achieve its aims of being an effective trade regulatory body. There is a need to recognize the presence of so many apparently unrelated and yet contributing and influencing factors, and to give them their rightful place in the proceedings of dispute settlement. The WTO needs to collaborate intimately with public interest groups to ensure that the settlements give “people” due importance. This sharing is also a call to other groups like ONE to involve themselves with the WTO to understand it better and suggest constructive methods for it to spruce up its act. We hope to achieve mutual objectives and learn from each other while working towards trade that is pro-everybody in all respects.