Document gbrD6o9d0oeapdDXLjvBgrnDV

Page 40 Moreover, in future concrete contexts, the line between a. "fundamentally" and "exclusively" economic view of "like products" under Arti cle III:4 may well prove very difficult, as a practical matter, to identify. It se ems to me the better part of valour to reser-ve one's opinion on such an important, indeed, philosophical matter, which may liave unforeseeable implications, and to leave that matter for another appeal and. another day, or perhaps other appeals and other days. I so reserve my opinion on this matter. VII. Article XX (b) of the GATT 1994 and Article 11 of the DSU 155. Under Article XX(b) of the GATT 1994, the Panel excamined, first, whether the use of chrysotile- cement products poses a risk to human h.ealth and, second, whether the measure at issue is "necessary to protect human ... 1 ife or health". Canada contends that the Panel erred in law in its findings on fc>oth these issues. We will examine these two issues in turn before addressing Canada..'s appeal that the Panel failed to make an "objective assessment", under Article 1 1 of the DSU, in reaching its conclusions under Article XX(b) of the GATT 1994. 156. We recall tliat Article XX(b) of the GATT 1994 read_s: Subject to the requirement that such measures are not. applied in a manner which would constitute a means of arbitrary or unjustifiable di scrimination between countries where th.e same conditions prevail, or a disguis ed restriction on international trade, nothing in this Agreement shall be c onstrued to prevent the adoption or enf ore ement by any Member of measures: *44 (b) necessary to protect human, animal or plant life or health; (emphasis added) A. "To Protect Human Life or Health" 157. On the issue of whether the use of chrysotile-cem&nt products poses a risk to human health suff i cient to enable the measure to fall wit hin the scope of application of the phrase "to protect human ... life or luealth" in Article XX(b), the Panel stated that it "considers that the evidence before it tends to show that handling chrysotil e-cement products constitutes a risk to health rather than the opposite." [FN142] (emphasis added) On the basis of this assessment of the evidence, the Panel concluded that: ... the EC has made a prima facie case for the existe nee of a health risk in connection with th.e use of chrysotile, in particular as r-egards lung cancer and mesothelioma in th.e occupational sectors downstream of pr-oduction and processing and for the public in general in relation to chrysotile-cemen_t products. This prima facie case has not been rebutted by Canada. Moreover, the Panel considers that the comments by the exiperts confirm the health risk associate d with exposure to chrysotile in its -various uses. The Panel therefore considers that the EC have shown that the policy of prohibiting chrysotile asbestos implemented by the Decree falls within the range of policies designed to protect human li fe or health. ... [FN143] (emphasis added) Thus, the Panel found that the measure falls within th& category of measures embraced by Article XX(b) of the GATT 1994.