Document G6pDyBO3j1Y91ndyQgvxEde3r

Page 31 "likeness" of products, panels must evaluate all of the relevant evidence. We are very much of the view that evidence relating to the health risfcs associated with a product may be pertinent in an examination of "likeness" under Article lll:4 of the GATT 1994. We do not, however, consider that the evidence relating to the health risks associated with chrysotile asbestos fibres need be examiraed under a separate criterion, because we believe that this evidence can be evaluated under the existing criteria of physical properties, and of consumers' tastes and haabits, to which we will come below. *33 114. Panels must examine fully the physical properties o products. In particular, panels must examine those physical properties of products that are likely to influence the competitive relationship between products in the marketplace. In the case of chrysotile asbestos fibres, their molecular structure, chemical composition, and fibrillation capacity are important fcoecause the microscopic particles and filaments of chrysotile asbestos fibres are carcinogenic in humans, following inhalation. In this respect, we observe tbnat, at paragraph 8.188 of its Report, the Panel made the following statements regarding chrysotile asbestos fibres.- ... we note that the carcinogenicity of chrysotile fibres baas been acknowledged for some time by international bodies.135 This carcinogenicity was confirmed by the experts consulted by the Panel, with respect to both lung cancers and mesotheliomas, even though the experts appear to acknowledge that chrysotile is less likely to cause mesotheliomas than amphiboles. We also note that the experts confirmed that the types of cancer concerned had a mortality rate of close to 100 per cent. We therefore consider that we have sufficient evidence that there is in fact a serious carcinogenic risk associated with the inhalation of chrysotile fibres. Moreover, in the light of the comments made by one of the experts, the doubt=s expressed by Canada with respect to the direct effects of chrysotile on mesotheliomas and lung cancers are not sufficient to conclude that an official responsible foie public health policy would find that there was not enough evidence of the existence of a public health risk. superl35 Since 1977 by the IARC (see List of Agents Carcinogenic to Humans, Overall Evaluations of Carcinogenicity to Humans, Monographs of the International Agency for Research on Cancer, Volumes 1-63), see also WHO, IPCS Environmental Health Criteria (203) on Chrysotile, Geneva (1998), cited in para. 5.584 above- On the development of knowledge of the risks associated with asbestos, see Dr. Henderson, para. 5.595. This carcinogenicity, or toxicity, constitutes, as we see it ,, a defining aspect of the physical properties of chrysotile asbestos fibres. The evidence indicates that PCG fibres, in contrast, do not share these properties,' at least to the same extent. [FN96] We do not see how this highly significant physical difference cannot be a consideration in examining the physical properties of a product as part of a determination of "likeness" under Article III:4 of the GATT 1994. 115. We do not agree with the Panel that considering evidence relating to the health risks associated with a product, under Article 111:4, nullifies the effect of Article XX(b) of the GATT 1994. Article XX(b) allows a Member to "adopt and enforce" a measure, inter alia, necessary to protect human life or health, even though that measure is inconsistent with another provision of the GATT 199-4. Article 111:4 and Article XX(b) are distinct and independent provisions of the G-2ATT 1994 each to be interpreted on its own. The scope and meaning of Article III:4 should not be broadened or restricted beyond what is required by the normal customary international law rules of treaty interpretation, simply because Article XX(b) exists and may be available to justify measures inconsistent with Article 111:4. The fact that an interpretation of Article 111:4, under those rules, implies a less frequent recourse to Article XX(b) does not deprive the exception in Article XX(b) of effet utile. Article XX(b) would only be deprived of effet -aatile if that provision could not serve to allow a Member to "adopt and enfozrce" measures "necessary to protect human ... life or health". Evaluating evidence relating to the