TWN Info Service on WTO and Trade Issues  (May09/02)
13 May 2009
Third World Network

Panel set over US measures on Mexican tuna
Published in SUNS #6685 dated 22 April 2009

Geneva, 21 Apr (Kanaga Raja) -- The WTO Dispute Settlement Body on Monday agreed to establish a panel, at the request of Mexico, to rule on measures imposed by the United States concerning the importation, marketing and sale of tuna and tuna products from Mexico.

This was a second-time request and panel establishment was automatic.

New Zealand, Ecuador, Guatemala, Korea, Turkey, Chinese Taipei, Japan, China, the European Union, Argentina and Australia reserved their third-party rights to the dispute.

According to a communication by Mexico to the DSB, the measures adopted by the United States concerning the importation, marketing and sale of tuna and tuna products include the following:

-- United States Code, Title 16, Section 1385 ("Dolphin Protection Consumer Information Act");

-- Code of Federal Regulations, Title 50, Section 216.91 ("Dolphin-safe labelling standards") and Section 216.92 ("Dolphin-safe requirements for tuna harvested in the ETP [Eastern Tropical Pacific Ocean] by large purse seine vessels");

-- The ruling in Earth Island Institute v. Hogarth, 494 F. 3d 757 (9th Cir. 2007).

Mexico held that the US measures have the effect of prohibiting the labelling of Mexican tuna and tuna products as "dolphin-safe", even when the tuna has been harvested by means that comply with the multilaterally agreed "dolphin-safe" standard established by the Inter-American Tropical Tuna Commission, while tuna products from most other countries, including the United States, are allowed to be labelled as "dolphin-safe".

Mexico considered the aforementioned measures to be inconsistent with the obligations of the United States under Article 2 of the Technical Barriers to Trade (TBT) Agreement and Articles I and III of the GATT 1994.

The Mexican communication cited the following reasons:

-- Mexican products are not accorded immediately and unconditionally any advantage, favour, privilege or immunity granted to like products of any other Member, contrary to Article I. 1 of the GATT 1994;

-- Mexican products are accorded treatment less favourable than like products of US origin, contrary to Article III. 4 of the GATT 1994;

-- Mexican products are accorded treatment less favourable than like products of US origin and like products originating in any other country, contrary to Article 2.1 of the TBT Agreement;

-- The measures have the effect of creating unnecessary obstacles to trade, contrary to Article 2.2 of the TBT Agreement;

-- The measures are maintained although their objectives can be addressed in a less trade-restrictive manner, contrary to Article 2.3 of the TBT Agreement; and

-- The measures do not use as their basis an existing international standard, contrary to Article 2.4 of the TBT Agreement.

These violations nullify or impair the benefits accruing to Mexico under these Agreements and cannot be justified under any of the covered Agreements, said Mexico.

In a statement at the DSB, Mexico said that it was keeping its options open to find a mutually agreed solution with the US.

The US said that it considers its dolphin-safe labelling regime central to the protection of the dolphin population in the Eastern Tropical Pacific Ocean. It expressed confidence that the US dolphin-safe labelling measures that Mexico has challenged are consistent with US WTO obligations.

In addition, the US expressed concern that Mexico is proceeding with this request for another reason. On 24 March 2009, the US invoked Article 2205 (4) of the North American Free Trade Agreement (NAFTA).

In that provision, said the US, NAFTA parties agreed that certain disputes which pertain to matters arising under both the WTO Agreement and the standards-related provisions of the NAFTA, and which concern human, animal or plant life or health or the environment and raise factual issues concerning the environment or conservation, would be heard - at the responding party's option - solely under the NAFTA's dispute settlement procedures.

This dispute meets the criteria set out in that NAFTA provision, and the US has the right to have this dispute considered under the NAFTA, said the US.

It deeply regretted Mexico's decision to seek the establishment of a WTO panel despite its prior agreement with the other NAFTA parties on a choice-of-forum provision in the free trade agreement, and the invocation of that provision. The US urged Mexico to reconsider its position.

In response, Mexico was of the view that the provisions of NAFTA do not apply to the current dispute. It said that the case deals with important multilateral issues.

In an intervention, New Zealand said that environmental labelling is a growing phenomenon in international trade. New Zealand said that it had a systemic and commercial interest in this case. +