Non-Trade Values in the TBT Agreement: the Analysis of the “Dolphin-Safe” Labelling Scheme by the WTO Appellate Body Report in the US – Tuna II (Mexico) case

none1noSince more than twenty years, Mexico and the United States have been facing each other at international level on the method used by the Latin American fishermen to catch tuna in the Eastern Tropical Pacific Ocean (ETP). Within the GATT 1947, the long-standing dispute accompanying the two countries produced two widely commented reports on the US ban on the imports of tuna caught with purse-seine nets endangering, dolphins; while, in the WTO system, the symbiosis between tuna and dolphins –the first ones constantly swimming together with the marine mammals that, once spotted by the Mexican vessels, are chased and encircled in order to more easily and abundantly catch the tuna beneath- has been considered also by the Appellate Body, in a report issued on 16 May 2012, and adopted by the Dispute Settlement Body (DSB) on 13 June 2012. In particular, the WTO Tribunal had to rule on the US “Dolphin-Safe” labelling scheme. This scheme, created and disciplined by the Dolphin Protection Consumer Information Act (DPCIA) of 28 November 1990 and by its implementing regulations, as interpreted by a US Federal Court in the so called “Hogarth ruling”, has been considered as unjustified and discriminatory by Mexico, because, for tuna caught in the ETP, the Dolphin-Safe label may be used only provided that the catching of the fish occurs without intentionally deploying purse-seine nets. Such a discipline, in fact, prevents Mexican operators from marketing their tuna as caught safeguarding dolphins even if they abide by the standard developed under the Agreement on the International Dolphin Conservation Program (AIDCP), the treaty concluded in 1998, after many years of negotiations, and which also includes as Contracting Parties the United States and Mexico. The AIDCP standard for dolphin-safe labelling have been agreed on in the “Procedures for AIDCP Dolphin Safe Tuna Certification,” which establish, unlike the challenged US law, that tuna may be qualified as dolphin-safe just on the basis of statistical data on mortality and injury of the marine mammals during fishing operations, without taking into consideration any fishing method. The AIDCP standard thus admits the qualification of tuna as dolphin-safe even if purse-seine nets have been used in the ETP, provided that the independent observers monitoring the fishing activities on the Mexican boats may certify that there has been no “significant adverse impact” on the conservation of the popular cetaceans during their intentional encirclement to capture the underneath tuna. The AB report in the US-Tuna II (Mexico) case is of great interest as it intervenes on a host of issues central to international trade, also in the perspective of the relation between trade liberalization, the consumers’ right to information, and the protection of the health and welfare of animals, moreover interpreting a WTO Agreement -the Agreement on Technical Barriers to Trade (hereinafter: the TBT Agreement)- which, from the enter into force of the multilateral trade system in 1995, has been the subject of only four cases entirely resolved by applying its rules and under both sets of proceedings allowed by the Geneva mechanism. Furthermore, as the object of the dispute here considered is a labelling system dedicated to the sustainability of the production process of the traded good –a market instrument increasingly used to highlight to the potential purchasers the respect for the environment and natural resources in production methods, as well as the ecological qualities that distinguish the composition of a commodity- the important participation of civil society and stakeholders, distinguishing the US-Tuna II (Mexico) case, does not come as a surprise. Institutions and academics, non-governmental organizations dedicated to the protection of animals, private entities that promote the development of international standards, have thus presented their significant contribution to the WTO judicial bodies in the US-Tuna II (Mexico) dispute making use of the amicus curiae instrument, following a long-standing practice developed by the Appellate Body since its well-known report of the US - Shrimp case. This essay, therefore, intends to outline the most relevant aspects of the conclusions reached by the Appellate Body in the delicate interpretative issues emerged on the compatibility of the US Dolphin-Safe labelling scheme with the TBT Agreement. They concern the distinction between “regulation” and “standard,” the principles of non-discrimination and necessity with reference to trade restrictions, the definition of “international standardizing body”, and the identification of the legitimate purposes for the pursuit of which the WTO Members may adopt and / or maintain technical measures -purposes that the Appellate Body shows to consider as legitimate even when covering non-trade values concerning non-product related process and production methods (NPR-PPMs), a theme that, from the first GATT 1947 report in the US – Tuna (Mexico) case, catalyzed lively and articulated discussions, intensified with the possibility of including NPR-PPMs in the TBT Agreement.Within the EGP Project “The Capacity Building of Environmental Justice and Guarding Environmental Rights in Western China”, financed by the European Union, the scholars of the University of Bologna, partner of the China University of Political Science and Law (CUPL) and its Center for Legal Assistance to Pollution Victims (CLAPV), have worked on an Environmental Law Survey so as to provide to the interested public –in particular, Chinese judges, lawyers, academics, and civil society as a whole – with the most interesting and recent judicial decisions or pieces of Environmental Law legislations developed in the most relevant legal fields. With specific reference to International Economic Law, also the WTO case-law has been taken into consideration, presenting and commenting the relevant reports on the relation between trade liberalization and non-trade values adopted in the last years by the WTO Dispute Settlement Body.openE. BaronciniE. Baroncin