British Asbestos Newsletter
BRITISH ASBESTOS NEWSLETTER
9 Tintagel Drive, Stanmore, Middx. HA7 4SR England
Compiled by Laurie Kazan-Allen
Jerome Consultants
Issue 39: Summer 2000
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.
Industry's Reaction
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 aloneÉ 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 isÉ 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
É 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."
Implications
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 disputeÉ 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 "relevanceÉ 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."
Conclusion
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
Jerome Consultants
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