Asbestos Case Analysis: Article XX Of The GATT, TBT Agreement And Public Health Protection Measures

Under the circumstances of the economy of globalization, the WTO plays an extraordinarily important role in the international business. The WTO makes best efforts to balance all kinds of conflicts between the members and the whole system. There are two essential conflicts in connection with the freedom of the international trade. On one hand, the measures in order to protect the national interests taken by the members of the WTO always restrict the freedom of the international trade. However, the members are limited to take measures consistent with the purpose of the freedom of international trade, one of the fundamental principles of the WTO legal system. So there is a conflict between the members and the system in the field of international trade. On the other hand, the environmental problems caused by the development of modern industry awaken the public to pay more attention to health and environmental protection. As the national authority, the governments of the members have the right to take measures so as to protect the domestic public life and health. However, such measures to some extent restrict the freedom of the international trade. Thus, there is also a conflict between the freedom of the international trade and the protection of the public health.On the basis of the Agreement on Technical Barriers to Trade (TBT Agreement) and the General Agreement on Tariffs and Trade ( GATT ) together with the Asbestos case, the thesis mainly discusses the issues that the members take measures to protect the public health, especially under the circumstances that the members prohibit the use of the hazardous products within the territory. In theory, such issues are forwarded: how to determine the "like product" under the GATT, how to apply Article â…©â…© of the GATT, to what extent the TBT Agreement be applied and how to justify the measures under the TBT Agreement and the GATT. Meanwhile, the thesis attempts to argue the following problems: the capacity of the WTO legal system to promote trade interests at the expense of the public health; the power of the members, especially the developing countries, to intervene effectively to control hazardous working conditions and environmental health hazards in their territories. In addition, the thesis further analyzes how to balance the abidance by the multiple agreements and the sovereign right to manage the national business, and how to balance the economic benefits of freer trade and the protection of the public health.The thesis can be divided into five parts, the first one of which is the brief of the Asbestos case. In the second part, the articles related to health measures of the TBT Agreement and the GATT are introduced and analyzed. Firstly, the origin and characteristics of the technical barriers to trade is introduced. Secondly, based on the introduction and analysis of the background and the objectives of the TBT Agreement, the fundamental attitudes towards regulating public health are clarified: permission on regulating public health of the WTO members, on the other hand, limitation on the sovereign of the national authority. Regulations shall not be more trade-restrictive than necessary to fulfill a legitimate objective, and not create unnecessary obstacles to trade. Lastly, a measure that falls in the scope of the TBT Agreement shall be under the GATT, so the concerned articles of the GATT is also discussed here, which are national treatment principle, namely the determination of the "like product", and Article XX(b).The third part of the thesis is mainly about the thorough analysis about the Asbestos case, which is reviewed under the TBT Agreement for the first time, and the reports of the Panel and the Appellate Body. The Appellate Body found that the Decree was a technical regulation subject to the rules of the TBT Agreement, and rejected the claims by Canada that the Decree was inconsistent with rules of the TBT Agreement. Under the GATT, having found the likeness between the asbestos prohibited by France and the marketable products in its territory, the P...