Critical Evaluation of WTO’s Stance in an

Environment related case.

Course Title: International Trade Law

Course Code: LLM-523
Submitted by,
M.M. Shahedur Rahman
Shanto,
LLM,
Department of Law & Justice,
Jahangirnagar University.
Submitted to,
Suprobhat Paul,
Associate Professor,
Department of Law and Justice.
Jahangirnagar University

Date of Submission: 31-01-2024

Title: Striking a Balance: Evaluating the EC—Asbestos Case in the Intersection of
Trade, Public Health and Environment.

Introduction:
The EC—Asbestos case is a crucial event that highlights the complex dynamic
between international trade and the protection of public health and environment. In
this essay, a thorough examination is made in the case and its significance in
maintaining a delicate equilibrium between economic interests and the well-being of
humans, animals, and plants.
Consumer Influence and Differential Treatment:
One praiseworthy aspect of the EC—Asbestos case is the Appellate Body's
recognition of the impact consumer behavior has on the treatment of products. This
reflects a sophisticated comprehension of the relationship between trade and public
health, as the decision acknowledges that products with potential health or
environmental hazards may warrant different treatment. This approach allows
countries to implement strict measures when required without infringing upon the
principles set forth in trade agreements. Moreover, it highlights the growing influence
of consumer preferences on global trade dynamics, emphasizing the necessity for
adaptable legal frameworks.
Flexibility in Implementing Health Measures:
The case has seen a significant advancement with the Appellate Body's
reinterpretation of Article XX(b) of GATT,1994 which now defines 'necessary' as
'reasonably available.' This departure from the typically rigid interpretation grants
national governments with much-needed leeway in implementing measures to
safeguard public health and the environment. By acknowledging the varying
circumstances and capabilities of nations in tackling health hazards, a practical
approach is demonstrated that balances sovereignty with adherence to universal
global norms. This flexibility holds paramount importance in effectively addressing
emerging health challenges, where a uniform approach may fall short. The case sets a
precedent for acknowledging the dynamic nature of global health challenges and the
necessity for adaptable legal frameworks.

Scientifically Proven Risks and National Autonomy:

The EC—Asbestos case places great importance on the ability of WTO members to
decide on the appropriate level of health protection when faced with scientifically
verified risks. This acknowledgement of national autonomy is in line with the
fundamental belief that countries have the right to protect the health of their citizens,
taking into account the severity of potential risks. By recognizing the sovereignty of
nations to act in the best interest of their people, this case signifies a departure from
previous paternalistic viewpoints and grants each nation the power to address specific
health hazards in a way that suits their individual situation.
Proportionality and Balancing Analysis:
One of the notable aspects of this case is its adoption of a proportionality or balancing
analysis, similar to that of the European Community and the United States. This
framework ensures that limitations on trade for health and environmental purposes are
reasonable and appropriate in relation to the identified risks. The acknowledgment of
vital shared interests or values further strengthens the argument for the necessity of
these measures. Such an approach helps maintain balance by avoiding the imposition
of excessive trade restrictions while validating the use of measures that strive towards
important objectives for public health and the environment.
Conclusion:
To sum it up, the EC—Asbestos case shines a light on the ever-changing world of
international trade law, skillfully navigating the delicate balance between economic
interests and public health concerns. By acknowledging the power of consumers,
incorporating adaptability in enforcing health measures, respecting the autonomy of
each nation, and utilizing a proportional approach, this case offers a thorough
blueprint for confronting the intricacies of our modern interconnected world. As we
forge ahead, this landmark case serves as a crucial example, underscoring the crucial
role of legal frameworks in effectively balancing the competing dynamics of trade
and safeguarding the welfare of individuals and the planet. The case encourages a
holistic approach that promotes cooperation among nations while recognizing the
evolving nature of global challenges in the 21st century.