The Epic Struggle for Dolphin-Safe Tuna: To Be Continued - a Case for Accommodating Nonprotectionist Eco-Labels in the WTO

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ABSTRACT

In May 2012, the World Trade Organization (WTO) struck down the United States' dolphin-safe tuna labeling standard as a barrier to trade that is prohibited by the Technical Barriers to Trade Agreement (TBT). The analysis in the US-Tuna II report questions the validity of standardized eco-labels enforced by WTO Member States, which are an increasingly popular means to achieve environmental and consumer protection. This Note considers the merits of state-backed eco-labeling schemes, the implications of the US-Tuna II report for the WTO's approach to nontrade interests, and potential accommodations within the current WTO framework for eco-labels. It ultimately suggests that WTO dispute resolution bodies depart from US-Tuna II; instead of rejecting environmental legislation that has any discriminatory effect upon trade, future decisions should concentrate upon whether the statute is intended to serve a protectionist purpose. It also suggests that the WTO consider awarding monetary aid to ease developing nations' financial or technological burdens in complying with upheld regulations.

TABLE OF CONTENTS

I.   INTRODUCTION
II.  US-TUNA II: A CASE STUDY OF THE WTO'S
     APPROACH TO ENVIRONMENTAL LEGISLATION
     UNDER THE TBT
     A. Legislative and Judicial History of the
        DPCIA
     B. The Labeling Standard as a Technical
        Regulation
     C. DPCIA as a Violation of the "no less favored
        nation" Requirement
     D. US-Tuna II's Result
III. US-TUNA II'S IMPLICATIONS FOR CONSUMER
     PROTECTION AND ENVIRONMENTAL OBJECTIVES
     A. Empirical Evidence on the Debated Success
        of Eco-labeling
     B. The Purpose of State-Mandated
        Eco-labeling Standards
     C. The Growth of State-Backed Labeling
        Standards
     D. Opposition to State-Backed Eco-labeling
        Standards
     E. Environmental and Consumer Protection
        Concerns as Legitimate Policy Goals
IV.  THE WTO'S QUANDRY REGARDING NONTRADE
     INTERESTS
     A. The WTO's Obstacles in Accommodating
        Nontrade Interests
     B. US-Tuna II: A Shift in the WTO Appellate
        Body's Stance on Environmental Interests
V.   PROPOSED SOLUTION: REINTERPRETING THE TBT'S
     APPLICATION TO STATE ECO-LABEL STANDARDS AND
     MONETARY AID
     A. Enacting Change Without Amending the
        WTO Agreements
     B. Proposed Judicial Review: Distinguishing
        Environmental from Protectionist
        Motivations
     C. Requiring a Reasonable Foundation of
        Scientific Support
     D. Awarding Monetary Aid to Unsuccessful
        Challenging Parties
VI.  CONCLUSION

I. INTRODUCTION

In May 2012, the Dispute Settlement Body of the World Trade Organization (WTO) struck down the United States' dolphin-safe tuna labeling standards as a violation of the Technical Barriers to Trade Agreement (TBT). The dolphin-safe tuna label's standards were set in the Dolphin Protection Consumer Information Act (DPCIA), which mandated that sellers use the label only if their products were caught by proscribed fishing methods. (1) The standards themselves were the enormously popular product of a decade of legislative drafting, agency interpretation, and court review. (2)

In United States-Measures Concerning the Importation, Marketing and Sale of Tuna and Tuna Products (US-Tuna II), the WTO Appellate Body (Appellate Body) (3) held that the United States' dolphin-safe labeling standard was a "technical regulation" and therefore subject to compliance with the TBT. (4) It then ruled that the labeling standard violated the TBT because it would affect international trade; while American producers had already achieved compliance, the majority of Mexican vessels engage in fishing methods that disqualify them from using the dolphin-safe labels. (5) In addition, the Appellate Body examined the scientific data Congress itself used when determining eco-labeling standards were necessary but found the evidence did not justify the legislation. …