BRITISH ASBESTOS NEWSLETTER
UK Victory for South African Asbestos Claimants
By a remarkable 5:0 majority, the House of Lords ruled that 3000 South African plaintiffs should be permitted to bring claims for compensation against Cape plc, a British company, to the UK courts. At the lower court and the Court of Appeal, the defendants had maintained that the UK was not the proper forum for this trial. Cape was desperate for the actions to stay in South Africa where legal aid is virtually unavailable; the company even offered the Centre for Applied Legal Studies in Johannesburg a substantial sum to represent the claimants. Richard Meeran, a solicitor who represents the majority of the plaintiffs, said: "The House of Lords' decision is a victory for justice and has signalled a new era both in terms of the legal accountability of multinationals and the protection of human rights by the English courts. I hope Cape will now settle the claims as quickly as possible to alleviate the desperate suffering of the victims."
The WTO Speaks: Chrysotile is Bad for You!
Within hours of the World Trade Organisation (WTO) issuing confidential findings in the Canadian chrysotile case, rumours encircled the globe: for the first time, the WTO had ruled in favor of public health and against free trade! The interim decision, disclosed to the litigants in June and finalized in July, will be made public in September. It is believed to be a complete vindication of the 1997 French ban on chrysotile, the only form of asbestos still legal within the European Union (EU).1 Early reports in Canada's Financial Post, Globe and Mail were confirmed by articles in Reuter's, Brazil's Gazeta Mercantil and the UK's Financial Times. With the initial press coverage, diplomatic tongues loosened and details flowed into the public domain. Trade officials revealed that scientists commissioned to answer questions set by the WTO's Dispute Settlement Panel had been unanimous: chrysotile is a carcinogen, the concept of "controlled use" is unrealistic and safer substitutes exist. The consistency of the experts' responses and their testimony in Geneva in January, 2000 reflect an international consensus that asbestos should be banned. WTO supporters told Reuters that the "finding disproves charges by radical environmental and human rights bodies that the organisation works in favour of big business by giving free trade interests preference over other concerns." A Brazilian article observed that the judgment demonstrates a conscious decision not to add fuel to the environmentalists' bonfire. Undoubtedly, growing distrust and anti-WTO sentiment apparent on the streets of Seattle last December have been factored into the equation. While it is likely that Canada will appeal, WTO precedents suggest that the judgment is unlikely to be reversed.
What is This Case About?
French Decree 96-1133 prohibited the import and use of chrysotile and all chrysotile-containing products as of January 1, 1997. Canada, currently the world's leading exporter of chrysotile, had grown used to French custom and support. France, once the third largest importer of asbestos worldwide, had been a stalwart ally within the EU. French politicians and civil servants, no doubt much encouraged by the industry-backed Standing Committee on Asbestos, led the resistance to EU restrictions on chrysotile; in recent years, France purchased six per cent of Canadian chrysotile annually. While unilateral bans in nine other European countries (Iceland 1983, Norway 1984, Denmark 1986, Sweden 1986, Austria 1990, Netherlands 1991, Finland 1992, Italy 1992 and Germany 1993) had been overlooked, this betrayal by a former ally could not go unpunished.
When viewed against decades of inaction, the French legislation was truly remarkable. The lives of thousands of French asbestos victims had been decimated by a powerful industry which had continuously reassured trade unions, civil servants and the public of the safety of its products. As ever, jobs took precedence over health. French awareness of the appalling asbestos legacy increased during the 1990's due initially to the efforts of an informal coalition of workers, trade unionists, academics, scientists and environmentalists. ANDEVA, a national association of asbestos victims, was set up to formalise this association, to coordinate efforts on behalf of French asbestos victims and to lobby for a complete ban. The French Medical Research Council (INSERM) was asked to review international studies, academic papers, data and information on the national situation. Whether the Labour Relations Service and French Health Directorate had anticipated the damning conclusions reached by the eleven members of INSERM'S Joint Expert Analysis Group is unknown. The day after The Effects on Health of the Main Types of Exposure to Asbestos was published, Jacques Barrot, the Minister of Labour, 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.
Asbestos producers did not welcome INSERM's conclusions that: "all asbestos fibres are carcinogenic" and "the increase in mortality from lung cancer arising from exposure to asbestos fibres is as high in populations exposed to chrysotile as in those which have combined exposure or exposure to amphiboles alone… populations exposed occupationally to fibres known commercially as 'chrysotile' have an indisputable additional mortality from mesothelioma." The Asbestos Institute (AI), a Canadian body set up in 1984 to "maximise 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. AI Members were advised of steps being taken to counter "the impact of the French decision in Europe and at the international level." An emergency meeting of the Governing Council was called and "a strategy aimed at avoiding the adoption of an asbestos ban at the level of the European Union" was implemented by the Institute's European Advisory Council. Towards the end of July, 1996, discussions were held between personnel from the AI and the Governments of Canada and Quebec on commissioning an assessment of the INSERM report and securing the active involvement of other chrysotile-producing countries in lobbying the European Commission and individual member states.
On September 17, 1996, Health Canada requested that The Royal Society of Canada "convene an international expert panel to review" the INSERM report. The ninety-five page critique2 is a strained, demeaning and hasty exercise: all the work, including peer review, was completed within ten weeks. Many controversial issues remained unresolved. Trying to explain away divergent opinions, it was noted that: "Scientists cannot achieve a consensus on contentious issues after two weeks of reading and two days of face-to-face discussion... In science, consensus emerges; it does not arise from short-term confabulation. And it emerges most slowly when there are major uncertainties, as in the case of asbestos risks." Of the seven panellists, five were North American, one British and one, Dr Enzo Merler, Italian. His opinion stands out: "The INSERM Report could have underestimated the number of deaths due to asbestos exposure. In fact, in addition to causing human lung and pleural mesothelial tumours, exposure to asbestos also causes peritoneal mesothelioma in humans (and it possibly increases the risk of cancer at other sites, larynx, renal, colon and rectum). Deaths from peritoneal mesothelioma are not considered, quoted or counted in the INSERM report, which resulted in a possible underestimation of the causes of deaths attributable to asbestos that are potentially preventable."
That the AI had been closely monitoring developments in France was to be expected but the methodical approach they adopted is almost breath-taking in its attention to detail. AI records contain entries on everything from the publication by Ban Asbestos of The Black Book on Asbestos, the founding of the Anti-Asbestos Committee at Jussieu University (October, 1994), the holding of a press conference Asbestos: a Public Health Problem at which scientists "notably, British epidemiologist Julian Peto, who had recently published estimates in the journal The Lancet, which projected increased mortality rates amongst building maintenance and repair workers exposed to asbestos," spoke (April, 1995) to the formation of ANDEVA, a "victims' rights group," (February, 1996) and the bringing of a civil law suit (June, 1996) "which accused asbestos industry officials, technical and scientific consultants as well as French government officials of having conspired to delay the introduction of new, more stringent regulations on asbestos in buildings as well as to delay the ban of all uses of asbestos despite knowledge of its inherent health risks."3
The keen, some might say obsessive, industry interest in all French asbestos developments was matched by intensive behind-the-scenes efforts by the Canadian government to persuade, cajole and bolster international support for Quebec's chrysotile. Between July, 1996 and May, 1998 high-ranking 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. An analysis of a Chronology of Developments in the Asbestos Issue4 distributed by the Canadian government shows fifteen entries for meetings with UK or French politicians, academics, health and safety experts during this period. It was no accident that on June 18, 1997, Environment Minister Angela Eagle told the House of Commons that the Labour government intended to introduce a ban on chrysotile and two days later, at the Denver Summit, Prime Minister Chretien pressurized the new British Prime Minister for an exchange of "scientific information about the health risks associated with the use of chrysotile."The 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." It is obvious that the industry regarded the delay as a crucial and possibly enduring victory. Frantic trade missions were organized, foreign journalists feted, quasi-scientific workshops held and spurious agreements publicized5. Quebec politicians, asbestos industry representatives and others consulted with International Trade Minister Art Eggleton, Treasury Board President Marcel Masse, Natural Resources Minister McLellan and the Deputy Minister for International Trade. Clearly decisions were being taken at the highest level.
The WTO Process
An agreement to raise the profile of the dispute must have been reached because on June 20, 1997, the Canadian delegate on the WTO's Committee on Technical Barriers to Trade (TBT) requested that France rescind this "irrational and disproportionate" ban. Expressions of support from Columbia, Mexico and South Africa were countered by calls for information on these countries' asbestos industries. After the initial sabre-rattling, nothing much seemed to happen. The following January, a WTO spokesperson confirmed that Canada had not indicated whether it wished to proceed with the dispute. Further submissions expected at the March 27, 1998 meeting of the TBT never materialised. Instead, Canada raised a procedural question on the failure of the Belgian government to notify the WTO of new measures limiting the marketing, manufacture and use of asbestos. Finally, on May 28, 1998 the gloves came off. The Government of Canada 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." Natural Resources Minister Ralph Goodale confessed: "The (Canadian) government's objective is to maintain market access for chrysotile asbestos products, which are safe when used properly, according to the safe-use principle of the Government's Minerals and Metals Policy." In accordance with WTO dispute resolution procedures, the two sides had sixty days to resolve their differences. The first round of talks between the European Commission/France and Canada took place in Geneva on July 8. When bilateral talks failed, Canada asked the Dispute Settlement Body to establish an official panel. The following November, Canada confirmed this request but when EU representatives arrived in Geneva in mid-December to discuss the composition of the dispute panel, they were informed that Canada had requested a postponement. Simultaneously, EU officials were petitioned to reconsider the prohibitions.
Behind Closed Doors
The WTO's lack of transparency is legend; the operation of the chrysotile panel reveals an organization in which procedural secrecy is sacrosanct. Appendix 3 of the WTO Dispute Settlement Procedures states: "The panel shall meet in closed session...The deliberations of the panel and the documents submitted to it shall be kept confidential." The identity and credentials of panel members and expert witnesses, the content of written statements, oral testimonies and panel discussions are restricted as are disclosures of conflicts of interests by scientific advisors, the questions put to them, their opinions and the rebuttal of the parties involved. The three-man 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 panellists were William Ehlers and Ake Linden, a Swedish consultant on trade policy matters. The ability of working diplomats and trade experts to resolve a highly technical case within the short time allocated is questionable. These time constraints mean that much of the work is carried out by political scientists, economists and lawyers seconded to the WTO by national governments. No scientists are employed by the WTO and the impartiality of temporary appointments cannot be taken for granted.
Submissions and Delays
The Canadian brief was received by the panel on April 26, 1999. Leading scientific and medical authorities called it: factually inaccurate, substantially inaccurate, misleading, selective and wildly untruthful. Julian Peto wrote: "The Canadian report is… a biased political document rather than a serious scientific review." The EU's defence of France and the US support of the EU position were submitted in May. Canada's position was supported by Brazil and Zimbabwe, other asbestos-producing countries. Throughout the Summer, a persistent dispute over the commissioning of independent scientific advice dragged on; the Canadians objected to experts from any European country. Eventually, agreement was reached on the appointment of one American and three Australian scientists. In January, 2000 they were brought to Geneva to confirm their written evidence; the transcript of the scientific hearings will be appendixed to the final decision. French, Spanish and English versions of the experts' testimony will prove useful to campaigners.
The ruling originally expected in December, 1999 was initially delayed until March, 2000 and further delayed until July, 2000. When proceedings began, the Government of Brazil had supported the Canadian action; at that time, the annual income generated by Brazil's asbestos cement industry was US$540 million. Since then, there have been significant developments. On July 26, 1999, a written procedure adopted by the EU signalled the end to the use of chrysotile in all Member States. Three days later, Brazil's Environment Minister announced his government's intention to follow the EU lead. On April 13, 2000, he promised that legislation to phase out the use of chrysotile by 2005 would be in place by June, 2000. An announcement is imminent.
What is this Case Really About?
Why would Canada jeopardise its international reputation and poison relations with the third world for a moribund industry which offers employment to a mere 2,000 or so Quebec residents? The answer is simple; jobs, votes and the fragility of Quebec's position within the Canadian federation. Cathy Walker, Health and Safety Director of the Canadian Auto Workers' Union, agrees that the impetus is political: "The Canadian and Quebec governments are competing with one another to show just how prepared they all are to protect Quebec jobs." 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% of Canadian chrysotile. Morocco, Tunisia and Algeria, all former French colonies, are also good customers. Despite the relevance of the WTO decision to asbestos use in these nations, the terms of reference excluded testimony "about the technical feasibility of applying 'controlled use' of asbestos in Asia, Africa and Latin America, where uncontrolled use is the norm."6 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."
Canadian disregard for foreign lives is mirrored by the federal government's lack of interest in the damage caused by asbestos within Canada itself. Despite estimates by the National Cancer Institute (NCI) of Canada that nine percent of cancer deaths are occupationally-related, only one tenth of one per cent of NCI research is into these diseases. According to Jim Brophy from the Occupational Health Clinic for Ontario Workers in Sarnia, Canada "has never maintained a cancer registry that could actually document the impact of asbestos exposure on our own citizens." This accusation is unfair. There is concern about the effects of asbestos exposure in Canada; substantial sums are being spent on the removal of asbestos from parliamentary buildings in Ottawa. It's unfortunate that the politicians' desire to safeguard their own well-being does not extend to that of Canadian, Malaysian, Moroccan or French workers.
Canadian Reaction to The WTO Verdict
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." Jean Dupere, President of LAB Chrysotile, called the verdict: "a very hard blow for Thetford Mines and Asbestos," while Bernard Coulombe, President of the Jeffrey Asbestos Mine, was critical of the illogical and excessive ruling of the WTO and 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 position of Canada's trade officials could not be more compromised. On the one hand, they support the discredited industry position of "controlled use" in the WTO challenge; on the other, Pierre Pettigrew, Canada's International Trade Minister, declares: "Canada has long encouraged our corporations to act responsibly throughout the world."7 Pettigrew's comments were made on June 27, 2000 during the launch of new Organization for Economic Development guidelines for the conduct of multinational enterprises. The rules "will complement the best practices of Canadian companies and play an increasingly significant role in fostering good corporate citizenship around the globe," Pettigrew said. Industry Minister John Manley and Labour Minister Claudette Bradshaw confirmed Canada's good intentions with Manley claiming: "we believe that these guidelines are an important step toward ensuring sustainable growth of the global economy to benefit all countries," and Bradshaw adding: "the revision of the guidelines furthers efforts to promote global respect for the International Labour Organisation's core labour standards." The decision to appeal the dispute panel's findings rests largely in Pettigrew's hands; would this really encourage the Canadian asbestos industry to "act responsibly throughout the world?" Journalist Madelaine Drohan thinks not; urging her government not to appeal, she wrote: "Having our Prime Minister flogging asbestos around the world doesn't do Canada's image as a 'green' country much good … It would be better for the federal government to give all 2,500 workers in the asbestos industry large severance packages to retrain or retire than to continue this losing battle."
As circulation of the judgment remains restricted, a detailed analysis of the text is not possible at this time. It has, however, been reported that Article XX(b) of the General Agreement on Tariffs and Trade, which permits the imposition of trade-restrictive measures to protect human, animal or plant life or health, was accepted by the WTO as grounds for the French prohibition. If true, it would be the first time a dispute panel has used this provision to settle an international trade disagreement. Other health and safety regulations might be facilitated by this article. Some observers believe that establishing asbestos as a precedent could, in the long run, prove limiting: "In effect, by accepting a ban on asbestos (a product with a fairly low international trade value), the WTO could discourage bans on other products whose hazards are not as well known as asbestos,"8 wrote Sam Zia Zarifi, a legal expert from Erasmus University. Medical evidence and statistical data on occupational asbestos exposure have been accumulating for decades; few other cases are as conclusive. By setting the benchmark so high, civil society could find itself barred from regulating the use of other dangerous substances. Zarifi is also concerned that: "the Asbestos dispute… potentially constitutes the most significant expansion of the WTO's reach into areas of human health and worker safety once exclusively reserved for sovereign States." Others agree: "By reducing the right to health to 'technical provisions,' the WTO's arbitration shifts the legitimacy of it from the political arena to that of scientific and technocratic expertise, beyond all democratic control."9 In other words, by acceding to the WTO charter, the 134 member states relinquished the democratic right and civic responsibility for the well-being of their citizens. Despite these reservations, the Canadian defeat is a resounding victory for the EU legal team, environmentalists, health and safety campaigners, trade unionists and asbestos victims and asbestos victim support groups worldwide.
As Western markets for chrysotile continue to shrink, producers are increasingly targeting customers in developing countries. Now that the French ban has been upheld, markets in South America, Asia and the Far East will be even more fiercely defended. Hopes that this ruling might have created acceptance of an asbestos-free future look premature. Still peddling the party line, the Asbestos Information Centre (India), Asbestos Cement Products Manufacturer's Association (India), Asbestos International Association (USA) and Asbestos Institute (Canada) will tell delegates to the "Strengthening Responsible Use" conference in New Delhi 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. It is not surprising to find that the conference details, such as they are, appear on the website of the Asbestos Information Centre, a member of the Asbestos International Association. Nigel Bryson, Director of Health and Environment for the GMB Union, is appalled but not surprised that "Asbestos producers still delude themselves, and more importantly, others into thinking that exposure to chrysotile fibres can be adequately controlled." He has written to the Indian government, the High Commission in London and the Asbestos Information Centre in New Delhi: "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."
The Global Asbestos Congress: Past, Present and Future
Is it coincidental that the industry-sponsored event will take place barely two months after the Global Asbestos Congress: Past, Present and Future exposes 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 18-20, 2000 to examine ways to deal with the horrific legacy asbestos has bequeathed to the new century.10 Judging by past behaviour, there was no way industry apologists would have allowed the debate from Osasco to go unchallenged; hence the New Delhi exercise? Over the years, the asbestos lobby has been thorough and proactive in its attempts to identify and counter potential threats. As UK and EU policymakers were revising proposed asbestos directives in March, 1999, a trade mission composed of Vangala Pattahhi of Hyderabad Industries, Edward Chindori-Chininga, Zimbabwe's Deputy Minister of Mines, Environment and Tourism, Andre Brochu, a trade unionist from Quebec and Bob Pigg, President of the Asbestos Information Association, just happened to arrive in London. Pielle Consulting, a public relations company, offered access to "a small international team representing science, industry and trade unions to provide individual journalists with factual briefings." When the EU ban on chrysotile became inevitable, a damage limitation team was hastily dispatched to Brazil to contain adverse media coverage: David Bernstein, Corbett McDonald, Geoffrey Berry and Frederick Pooley upheld the principle of "controlled use" in press interviews and presentations at an asbestos seminar in Sao Paulo. These public relations exercises are mere window dressing compared to the efforts by Canadian government officials and asbestos industry representatives to undermine the scientific objectivity of international organisations over the last 15 years. In a paper which he will present to the Osasco conference11, Dr Barry Castleman details attempts to "get reports favorable to the industry published as official reports by the International Program on Chemical Safety (IPCS), the World Health Organization, and the International Labor Office." Castleman reveals: "a pattern of improprieties, often involving the same individuals and tactics." The drama which took place during a meeting of the IPCS Task Group on Chrysotile (July, 1996) is of particular interest: "A dispute arose when Canadian government employee and Chair of the Task Group, ME Meek, attempted to veto the group's decision to include a warning against the use of asbestos in construction materials; she was obliged to step down as Chair when the Task Group held firm on that question. The Task Group also took the unusual step of excluding the active participation of G Gibbs from the preparation and the conclusions and recommendations part of the report, requiring that observers (Gibbs was the only one left) leave the Task Group participants alone to do this."
Throughout the twentieth century, asbestos producers and manufacturers profited from the global trade in a material once known as "the magic mineral." Despite the mounting death-toll and accumulation of evidence, governments chose to believe the propaganda of industry representatives over the impartial advice of independent doctors and scientists. The WTO case marks a sea-change from which, if the decision is upheld on appeal, there can be no turning back. The WTO challenge was the last ploy in the depleted repertoire of a discredited and dying industry.
Compiled by Laurie Kazan-Allen
Ó Jerome Consultants