World Trade Organization - Agreement on Technical Barriers to Trade - barriers to trade - discrimination - environmental and animal health objectives.

Author:Shaffer, Gregory
Position:2012 WTO decision in Measures Concerning the Importation, Marketing and Sale of Tuna and Tuna Products (Mexico v. United States

United States--Measures Concerning the Importation, Marketing and Sale of Tuna and Tuna Products. WT/DS381/AB/R. At

World Trade Organization Appellate Body, May 16, 2012 (adopted June 13, 2012).

World trade organization--agreement on technical barriers to trade--barriers to trade--discrimination--environmental and animal health objectives

In a Mexican challenge against U.S. criteria for labeling tuna products as "dolphin-safe," the Appellate Body of the World Trade Organization (WTO), on May 16, 2012, held against the United States while reversing various findings of the panel. (1) The case was one of three WTO Appellate Body decisions issued in 2012 that interpreted and applied the key substantive provisions of the Agreement on Technical Barriers to Trade (TBT Agreement or TBT) for the first time. (2) Systemically, the decision is important for its interpretation of the TBT Agreement's substantive obligations, the types of labeling that fall within the scope of the Agreement, the legitimacy of labeling based on foreign process and production methods (PPMs), and the relation of other international law to WTO law.

The case concerned whether the dolphin-safe labeling requirements established under U.S. law comply with the TBT Agreement. The fishing practices predominantly used by the Mexican tuna fleet do not meet the criteria specified in the U.S. law, even though they do comply with the dolphin-safe standards agreed upon in an international conservation treaty to protect dolphins negotiated among the United States, Mexico, and twelve other countries that border or fish for tuna in the eastern tropical Pacific (ETP). (3) In contesting the validity of the U.S. standards, Mexico made three substantive claims under the TBT Agreement. (4) It claimed that the U.S. labeling measures (1) provided "less favorable treatment" to Mexican tuna than U.S.-caught tuna and certain foreign-caught tuna under TBT Article 2.1, (2) constituted "unnecessary obstacles to international trade" under TBT Article 2.2, and (3) failed to comply with applicable international standards under TBT Article 2.4.

Both the panel and the Appellate Body ruled against the United States, but on different grounds. The panel found that although the U.S. measures were nondiscriminatory under Article 2.1, they were more trade restrictive than necessary under Article 2.2 because a less trade restrictive alternative was available that met the U.S. conservation and consumer protection objectives. Both the United States and Mexico appealed the decision. The Appellate Body overruled the panel on both findings, holding that although the U.S. law was not more trade restrictive than necessary to meet the U.S. objectives under Article 2.2, it was discriminatory under Article 2.1.

The case arose from the circumstance that schools of tuna often swim in the ETP with dolphins, so that tuna trawlers can locate and catch the tuna by "setting on" dolphins with purse-seine nets. In the 1980s, approximately one hundred thousand dolphins died annually from this fishing practice. The United States had begun to regulate the practice in the 1970s, and in 1984, U.S. law banned its use by U.S. vessels (subject to some conditional exceptions in the ETP), and called for a ban on tuna imports from countries that did not adopt a comparably effective environmental program to protect dolphins. (5)

In 1991, the U.S. government implemented the ban with regard to Mexican tuna imports. That step triggered the most controversial case in the history of the General Agreement on Tariffs and Trade (GATT), the U.S.--Tuna/Dolphin decision of 1991, in which a GATT panel found that the U.S. ban on Mexican tuna imports failed to comply with U.S. obligations under the GATT in light of its coercive, extraterritorial nature. (6) While the United States blocked adoption of the panel report, environmentalists' concerns about international trade law have continued ever since.

The United States and Mexico then engaged in negotiations with other countries that border or fish for tuna in the ETP; those efforts gave rise to a series of agreements addressing dolphin conservation concerns, including the 1992 La Jolla Agreement, the 1995 Panama Declaration, and the 1998 Agreement on the International Dolphin Conservation Program (AIDCP). (7) Under these agreements, the parties developed the International Dolphin Conservation Program, which eventually established binding annual fleet-wide mortality limits apportioned into individual vessel limits. The AIDCP also required the use of particular equipment and catching practices, mandated training for captains, and required a third-party observer on all vessels who would certify whether any dolphins had been killed or seriously injured. The results have been significant. Annual dolphin mortality in the ETP reportedly has declined by over 99 percent, from about 132,000 in the mid-1980s to about 1200 in recent years. (8) Although the dolphin population is now recovering, whether or not the recovery rate is sufficient for its sustainability is disputed. (9)

In 1990, the United States created a regime for the labeling of tuna as dolphin safe under the Dolphin Protection Consumer Information Act, aimed in particular at tuna-fishing practices in the ETP. (10) Under the original Act, no tuna could be labeled as dolphin safe when they were caught by setting on dolphins in the ETP. The annex to the 1995 Panama Declaration, however, effectively permitted tuna caught with purse-seine nets in the ETP to be labeled as dolphin safe, provided that an observer documented that there was no "dolphin mortality" in the set. (11)

In 1997, with the support of several major environmental nongovernmental organizations, Congress amended the statute to...

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