A WTO Safe Harbour for the Dolphins: The Second Compliance Proceedings in the US – Tuna II (Mexico) Case

23 Pages Posted: 19 Sep 2019

See all articles by Elisa Baroncini

Elisa Baroncini

Università di Bologna - Alma Mater Studiorum Università di Bologna

Claire Brunel

American University School of International Service

Date Written: August 15, 2019

Abstract

Subsequent to the 2016 modifications, concerning the strengthening of the administrative requirements on dolphin-safety outside the ETP fishery zone, the US Dolphin-Safe labelling scheme has finally been considered compatible with the multilateral trade system by the second WTO compliance proceedings. In the present work, we provide an overview of the long running US-Mexico dispute, and assess the final findings of the WTO adjudicators attempting to determine the effects of the multilateral litigation on the involved non-trade values and the real winners of the case. We find an improvement in dolphin protection, though more could be achieved through a qualification of the US measure under the principle of sustainable development also contemplated in the Preamble of the WTO Agreement, as well as an enhancement on consumer information, since declaration of dolphin-safety may now be better monitored and enforced through the new discipline for non-ETP tuna products. However, we also observe that with no change to the appearance of the label or an informational campaign, the improved credibility of the label may hardly be passed-through to the average consumer. Furthermore, it is underlined that, despite an increase in the stringency of the regulation for their competitors, Mexican producers do not gain greater access to the US and instead have been diversifying towards other markets. We then highlight that the Appellate Body missed an opportunity to reinforce the transparency of the system by supporting the first-ever decision to grant partially open panel meetings.

Keywords: TBT Agreement; Labelling Schemes; Consumer Information; Animal Welfare; Sustainable Development; Article XX, lett. g) of the GATT 1994; Transparency

Suggested Citation

Baroncini, Elisa and Brunel, Claire, A WTO Safe Harbour for the Dolphins: The Second Compliance Proceedings in the US – Tuna II (Mexico) Case (August 15, 2019). Available at SSRN: https://ssrn.com/abstract=3451516 or http://dx.doi.org/10.2139/ssrn.3451516

Elisa Baroncini

Università di Bologna - Alma Mater Studiorum Università di Bologna ( email )

Bologna
Italy

Claire Brunel (Contact Author)

American University School of International Service ( email )

4400 Massachusetts Ave, NW
Washington, DC 20016
United States

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