Back to the Future: US-Tuna II and the New Environment-Trade Debate

Abstract

The so-called Tuna-Dolphin case is of one the icons of the trade-environment debate. The case, originally raised before a GATT Panel in the early nineties, dealt with a US import ban of tuna fished in Mexico. The main issue was a controversial fishing technique, entailing the accidental kill of dolphins. After almost 20 years, Tuna-Dolphin is being disputed anew. This time the measure disputed is a (voluntary) labeling regime concerning ‘dolphin-safe’ tuna. A World Trade Organization (WTO) Panel Report was issued on 15 September 2011. The Report condemns the US labelling regime for being more trade restrictive than necessary. This Report is interesting because it offers an occasion to reflect on some provisions of the Technical Barrier to Trade (TBT) Agreement, which may be crucial for the assessment of the legality of environmental labelling regimes.

This article discusses a number of pitfalls of the Panel Report. It is argued that the reasoning that has led the majority of the Panel to conclude that the measure is a ‘technical regulation’ is founded on a questionable conceptual architecture. The most troubling part of the Report is the one dealing with the trade-restrictive nature of the measure. The Panel seems to have relied on a test by which if a measure does not reach its objectives perfectly, any other ineffective measures adopted with allegedly the same goals can be judged as a valid less-trade restrictive alternative. In other words, two wrongs seem to make a right in the view of the Panel; a conclusion that, for obvious reasons, will not be greeted with enthusiasm by environmentalists.

Keywords: TBT Agreement, WTO law, US-Tuna, International Economic Law, Risk Regulation, Technical Regulation, Standard

JEL Classification: K32, K33