International jurisprudence on trade and environmental health: one step forward, two steps back?

Our plain-English summary of International jurisprudence on trade and environmental health: one step forward, two steps back?, by K. Timmermans (International Journal of Occupational and Environmental Health, 2008).

The study

• Author: K. Timmermans
• Journal: International Journal of Occupational and Environmental Health
• Published: 2008;14(4):307-16
• Cited by: 1 article, as counted by NIH iCite
• Read it: PubMed · Publisher

Abstract

Since the creation of the World Trade Organization (WTO), there has been considerable debate regarding the impact of its rules on public health. By contrast, the role of the WTO dispute settlement mechanism has received little attention, even though the bodies responsible for settling disputes are the ultimate interpreters of WTO rules and agreements. To date, three WTO disputes that relate to occupational and/or environmental health have been fully litigated. A review of the decisions and reasoning in these cases indicates that WTO jurisprudence is evolving, as Panels and the Appellate Body try--with varying degrees of success--to balance countries' rights and obligations under international trade agreements with their right to protect occupational and environmental health. Disputes between nations can have an impact beyond the parties concerned, and raise questions about the relationship between trade agreements and other international agreements, especially multilateral environmental agreements (MEAs).

In plain English

This article was a legal and policy review, not a medical study. The author examined how World Trade Organization (WTO) dispute bodies handled three disputes involving occupational and environmental health: an asbestos case, a biotechnology case and a retreaded tires case. In the asbestos case, Canada, a major asbestos exporter, challenged France's 1996 ban on imports of asbestos and asbestos-containing products. The WTO Panel concluded the ban was justified for health reasons, and Canada lost. On appeal, the Appellate Body held that health risk should be considered when comparing products, found asbestos and substitute fibers were not 'like products', and confirmed the ban was justified under the health exception. The author found it plausible that one aim of the case was to discourage other countries from following France. The author also noted allegations by others that the health-risk review was biased. In the asbestos and tires cases, the author found that a narrow 'necessity test' appeared to have been abandoned. Separately, the author found that environmental treaties were given a more limited role in the cases discussed. The author concluded that the relationship between WTO rules and these treaties remained murky.

We wrote this plain-English summary from the full article with the help of AI, and a second AI model checked each sentence against the article. It is not the authors' wording; the abstract and the article are their own account.

What the study did and found

• Design: Review and legal analysis of WTO dispute rulings (not a medical or epidemiological study)
• Who was studied: Three fully litigated WTO disputes relating to occupational and/or environmental health: the asbestos case (Canada v. EC/France), the biotech case (Argentina, Canada and the USA v. EC), and the retreaded tires case (EC v. Brazil)
• Exposure: For the asbestos part: France's December 1996 ban on imports of asbestos and products containing asbestos fibers, challenged by Canada. Substitute fibers named in the dispute were polyvinyl alcohol, cellulose and glass fibers. No specific asbestos fiber types were named.
• Main results:
  • In the asbestos case, the WTO Panel concluded that asbestos and substitute fibers were 'like' products and that the French ban violated GATT Article III:4. It also concluded that the ban was justified for health reasons under GATT Article XX(b), so Canada lost.
  • The Appellate Body held that health risk, as well as consumer tastes and preferences, should be taken into account when examining whether products are alike. It found that asbestos and substitute fibers were not 'like products' and confirmed that the ban was justified under the health exception of GATT Article XX(b).
  • The author reported that some observers believe one reason Canada brought the case was to deter other countries, especially developing countries, from enacting their own asbestos bans. The author called this assumption plausible.
  • The author noted allegations by others that the Panel's review of the health risk of asbestos was biased and that the Panel did not make optimum use of the experts it consulted.
  • In the biotech case, the Panel found a de facto moratorium on approval of biotech products in the EC between June 1999 and August 2003. It also found undue delays in the regulatory assessment of 24 of the 27 products named in the complaints.
  • In the tires case, the Appellate Body (December 2007 report) found Brazil's import ban could be considered necessary to protect health and the environment. However, it applied an absolute standard and held that exempting imports from Mercosur countries amounted to arbitrary or unjustifiable discrimination.
  • The author found that the traditionally narrow interpretation of the 'necessity test' under GATT Article XX(b) appeared to have been abandoned specifically in the asbestos and tires cases.
  • The author found that multilateral environmental agreements were given a more limited role in the cases discussed. In the asbestos case, the Panel referred to the Convention concerning Safety in the Use of Asbestos mainly to invalidate Canada's assertion that it could not reasonably have anticipated the French ban.
• The authors' conclusion: The author concluded that, within WTO law, the health and environment exception in GATT has been strengthened and its boundaries clarified. However, the author concluded that the relationship between WTO rules and multilateral environmental agreements is still murky and may be moving away from equality. The author also suggested that developing countries should participate more often as third parties in disputes.

Related studies

• Global corporate policies and international "double standards" in occupational and environmental health — B. Castleman (1999)
• Asbestos poisons World Trade Organization atmosphere — L. Kazan-Allen (2001)
• Bilateral environmental and occupational health program with India — M. Allred, S. Campolucci, et al. (2003)
• Call for an international ban on asbestos — C. Ramazzini (1999)
• Health advocates assail Canada's asbestos stance — R. Collier (2008)
• The case for a global ban on asbestos — J. LaDou, B. Castleman, et al. (2010)

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