Hostname: page-component-8448b6f56d-c47g7 Total loading time: 0 Render date: 2024-04-23T21:23:27.250Z Has data issue: false hasContentIssue false
  • English
  • Français

United States—Measures Concerning the Importation, Marketing and Sale of Tuna and Tuna Products

Published online by Cambridge University Press:  20 January 2017

Gregory Shaffer
Gregory Shaffer*
Affiliation:
University of Minnesota Law School
Get access Rights & Permissions [Opens in a new window]

Extract

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. 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. 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.

Keywords

World Trade OrganizationAgreement on Technical Barriers to Tradebarriers to tradediscriminationenvironmental and animal health objectives
Type
International Decisions
Information
American Journal of International Law , Volume 107 , Issue 1 , January 2013 , pp. 192 - 199
Copyright
Copyright © American Society of International Law 2013

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

1 Panel Report, United States—Measures Concerning the Importation, Marketing and Sale of Tuna and Tuna Products, WT/DS381/R (Sept. 15, 2011) [hereinafter Panel Report]; Appellate Body Report, United States—Measures Concerning the Importation, Marketing and Sale of Tuna and Tuna Products, WT/DS381/AB/R (May 16, 2012) (adopted June 13, 2012) [hereinafter AB Report]. WTO dispute settlement reports and other WTO documents cited herein are available online at http://www.wto.org.

2 Agreement on Technical Barriers to Trade, Art. 1, Marrakesh Agreement Establishing the World Trade Organization, Apr. 15, 1994, 1867 UNTS 154 [hereinafter Marrakesh Agreement], Annex 1A, 1868 UNTS 120 [here inafter TBT Agreement], reprinted in WTO, The Legal Texts: The Results of the Uruguay Round of Multilateral Trade Negotiations 3, 121 (1999) [hereinafter Legal Texts]. The other two decisions are Appellate Body Report, United States—Measures Affecting the Production and Sale of Clove Cigarettes, W T/DS406/AB/R (Apr. 4, 2012) (adopted Apr. 24, 2012) (reported by Tania Voon at 106 AJIL 824 (2012)); Appellate Body Report, United States—Certain Country of Origin Labelling (Cool) Requirements, WT/DS384/AB/R (June 29, 2012) (adopted July 23, 2012).

3 Agreement on the International Dolphin Conservation Program, May 21, 1998, TIAS No. 12956, available at iattc.org/Pdffiles2/Aidcp-amended-Oct-2009.pdf [hereinafter AIDCAP].

4 Mexico brought additional claims under the General Agreement on Tariffs and Trade 1994, Apr. 15, 1994, Marrakesh Agreement, supra note 2, Annex 1A, 1867 UNTS 190, reprinted in Legal Texts, supra note 2, at 17 [hereinafter Gatt]. These claims were not addressed by the panel or the Appellate Body, although the Appellate Body criticized the panel for not doing so.

5 Commercial Fishing Industry Vessel Act, Pub. L. No. 98-364, sec. 101, 98 Stat. 440 (1984); Marine Mammal Protection Act Amendments of 1988, Pub. L. No. 100-711, 102 Stat. 4755.

6 Panel Report, United States—Restrictions on Imports of Tuna, Gatt B.I.S.D. (39th Supp.) at 155 (1993) (Aug. 16, 1991) (unadopted), reprinted in 30 ILM 1594 (1991).

7 AIDCAP, supra note 3; Declaration of Panama, Oct. 4, 1995, 143 Cong. Rec. S396, S397 (1997), available at http://www.iattc.org/Pdffiles2/Declaration_of_Panama.pdf; La Jolla Agreement for the Reduction of Dolphin Mortality in the East Pacific Ocean, Apr. 21, 1992, at http://faolex.fao.org (search “la jolla agreement”); see Parker, Richard W., The Use and Abuse of Trade Leverage to Protect the Global Commons: What We Can Learn from the Tuna-Dolphin Conflict, 12 Geo. Int’l Envtl. L. Rev. 1 (1999) (discussing these three agreements)Google Scholar.

8 Panel Report, para. 7.609.

9 Id., para. 7.557 (citing variation in estimates from a 1.4 percent increase per year to increases near the 4–8 per cent possible maximum).

10 Dolphin Protection Consumer Information Act, Pub. L. No. 101-627, sec. 901, 104 Stat. 4465 (1990) (codified as amended at 16 U.S.C.S. 1385 (2012)).

11 Declaration of Panama, supra note 7, Annex I, para. 3.

12 16 U.S.C. §1385(g)(1)–(2) (2011).

13 Earth Island Inst. v. Hogarth, 494 F.3d 757 (9th Cir. 2007).

14 See Tbt Agreement, supra note 2, Annex 1, para. 1 (defining a technical regulation as a “[d]ocument which lays down product characteristics or their related processes and production methods, including the applicable administrative provisions, with which compliance is mandatory. It may also include... labelling requirements as they apply to a product, process or production method “ (emphasis added)).

15 Panel Report, paras. 7.127, 7.131, 7.145. See generally Elizabeth Trujillo, The Tuna-Dolphin Encore— WTO Rules on Environmental Labeling, ASIL Insights (Mar. 7, 2012), at http://www.asil.org/insights120307.cfm.

16 TBT Agreement, supra note 2, Art. 2.1 (emphasis added).

17 Panel Report, para. 7.378 (quoting Appellate Body Report, Dominican Republic—Measures Affecting the Importation and Internal Sale of Cigarettes, para. 96, WT/DS302/AB/R (Apr. 25, 2005) (adopted May 19, 2005)).

18 TBT Agreement,supra note 2, Art. 2.2 (providinginpart that “Members shall ensure that technical regulations are not prepared, adopted or applied with a view to or with the effect of creating unnecessary obstacles to international trade. For this purpose, technical regulations shall not be more trade-restrictive than necessary to fulfil a legitimate objective, taking account of the risks non-fulfilment would create. Such legitimate objectives are, inter alia : national security requirements; the prevention of deceptive practices; protection of human health or safety, animal or plant life or health, or the environment....”).

19 Panel Report, paras. 7.618–7.621.

20 TBT Agreement, supra note 2, Art. 2.4.

21 Panel Report, para 2.40 (emphasis omitted).

22 The Appellate Body also cited in support of its reasoning a 2000 TBT Committee decision that sets out prin ciples and procedures that international standardizing bodies should observe, finding that the AIDCAP constituted “a ‘subsequent agreement’ within the meaning of Article 31(3)(a) of the Vienna Convention “ on the Law of Treaties. AB Report, para. 372 (citing WTO Comm. on Technical Barriers to Trade, Second Triennial Review of the Operation and Implementation of the Agreement on Technical Barriers to Trade, WTO Doc. G/TBT/9 (Nov. 13, 2000)). This finding could have implications for future decision making by WTO committees.

23 Quoting Mexico’s appellee’s submission, paras. 208, 209 (2d & 3d quotes).

24 See Gregory Shaffer, Case Report: United States—Import Prohibition of Certain Shrimp and Shrimp Products, in 93 AJIL 507 (1999).

25 TBT Agreement, supra note 2, Art. 2.5.

26 North American Free Trade Agreement, Art. 2005(3), Dec. 17, 1992, 32 ILM 605, 694 (1993) (providing: “In any dispute referred to in paragraph 1 where the responding Party claims that its action is subject to Article 104 (Relation to Environmental and Conservation Agreements) and requests in writing that the matter be considered under this Agreement, the complaining Party may, in respect of that matter, thereafter have recourse to dispute settlement procedures solely under this Agreement.”).