United States – measures concerning the
importation, marketing and sale of tuna and tuna products
Second Recourse to Article 21.5 of the DSU by Mexico
Request for Consultations
The following communication,
dated 13 May 2016, from the delegation of Mexico to the delegation of the
United States and to the Chairperson of the Dispute Settlement Body, is
circulated in accordance with Article 21.5 of the DSU.
_______________
My authorities have instructed me to request
consultations with the Government of the United States ("United States")
concerning the most-recently amended Tuna Measure (the "2016 Tuna Measure")
under Articles 21.5 and 4 of the Understanding on Rules and
Procedures Governing the Settlement of Disputes ("DSU"),
Article 14 of the Agreement on Technical Barriers to Trade
("TBT Agreement"), and Article XXII of the General
Agreement on Tariffs and Trade, 1994 ("GATT 1994").
On 13 June 2012, the Dispute Settlement Body ("DSB") adopted
the Appellate Body Report on United
States – Measures Concerning the Importation, Marketing and Sale of Tuna and
Tuna Products ("US – Tuna II
(Mexico)") and the Panel Report, as modified by
the Appellate Body Report, which found that the U.S. "dolphin-safe"
labelling measures are inconsistent with Article 2.1 of the TBT Agreement
and recommended that the United States bring its measures into conformity with
its obligations under that Agreement.[1] The dolphin-safe labelling measures
(collectively the "Tuna Measure") are composed of the United States
Code,
Title 16, Section 1385 (the "Dolphin Protection Consumer Information Act");
the Code of Federal Regulations, Title 50,
Section 216.91 and Section 216.92 (the "implementing regulations");
and a ruling by a U.S. federal appeals court in Earth Island
Institute v. Hogarth, 494 F.3d 757 (9th Cir.
2007) (the "Hogarth ruling").[2]
In its statement at the meeting of the DSB held on 25 June 2012, the
United States announced its intention to implement the DSB's recommendations
and rulings in this dispute and stated that it would need a reasonable period
of time (RPT) to do so.[3] On 17 September 2013, Mexico and the United
States informed the DSB that they had agreed that the RPT was 13 months from 13 June 2012,
the date of adoption of the DSB's recommendations and rulings. The RPT expired
on 13 July 2013.[4]
On 9 July 2013, the United States published in its Federal Register a
revision to its regulations administering the Tuna Measure (the "2013 Rule").[5]
Mexico and the United States disagreed as to "the existence or consistency
with a covered agreement of measures taken to comply with the recommendations
and rulings" of the DSB in the dispute. On 15 November 2013, Mexico
therefore requested the establishment of an Article 21.5 panel on the basis
that the 2013 Final Rule was inconsistent with Article 2.1 of the TBT Agreement
and Articles I:1 and III:4 of the GATT 1994.[6]
On 20 November 2015, the Appellate Body circulated its report on the
Article 21.5 proceedings, concluding that the United States has not brought its
dolphin-safe labelling regime for tuna products into conformity with the
recommendations and rulings of the DSB, and recommending that the DSB request
the United States to bring its measure into conformity with its obligations
under the TBT Agreement and the GATT 1994.[7]
On 3 December 2015, the DSB adopted the Article 21.5 Appellate Body report
and panel report, as modified by the Appellate Body report.[8]
On 10 March 2016, Mexico requested authorization from the DSB to
suspend concessions in the amount of US$ 472.3 million annually.[9]
On 22 March 2016, the United States objected to the level of Mexico's proposed
suspension of concessions, and the matter was referred to arbitration pursuant
to Article 22.6 of the DSU.[10]
On
23 March 2016, the United States published a notice in its Federal Register
revising the implementing regulations (the "2016 Rule").[11]
On 11 April 2016, the United States – without first
requesting consultations with Mexico – requested placement on the agenda of the
21 April 2016 DSB meeting a request for the establishment of another Article
21.5 panel to determine the consistency of the most recently revised Tuna
Measure with the United States' obligations under the TBT Agreement and the
GATT 1994.[12]
The United States' request was referred to the panel at the 9 May 2016 meeting
of the DSB.[13]
The following measures comprise the 2016 Tuna Measure:
i.
Section
1385 ("Dolphin Protection Consumer Information Act"), as contained in
Subchapter II ("Conservation and Protection of Marine Mammals") of
Chapter 31 ("Marine Mammal Protection"), in Title 16 of the United States Code;
ii.
Code of Federal Regulations, Title 50,
Part 216, Subpart H ("Dolphin Safe Tuna Labeling"), as amended by the
2013 Rule and 2016 Rule;
iii.
The
court ruling in Earth Island Institute v. Hogarth,
494 F.3d 757
(9th Cir. 2007) (the
"Hogarth ruling");
iv.
Any
implementing guidance, directives, policy announcements or any other document
issued in relation to instruments (i) through (iii) above, including any
modifications or amendments in relation to those instruments.
The
United States has made no changes to the Dolphin Protection Consumer
Information Act or the Hogarth ruling, and those measures remain an integral
part of the 2016 Tuna Measure.
Mexico considers that the United States has failed to implement the DSB's
recommendations and rulings and that the 2016 Tuna Measure is inconsistent with
the covered agreements:
i.
The
2016 Tuna Measure is inconsistent with Article 2.1 of the TBT Agreement because
it continues to accord Mexican tuna products treatment less favourable than
that accorded to like tuna products of the United States and to like tuna
products originating in any other country;
ii.
The
2016 Tuna Measure is inconsistent with Article I:1 of the GATT 1994 because it
continues to confer on tuna products originating in other countries
an advantage which is not accorded immediately and unconditionally to like tuna
products originating in Mexico;
iii.
The
2016 Tuna Measure is inconsistent with Article III:4 of the GATT 1994 because
it continues to accord Mexican tuna products treatment less favourable than
that accorded to like tuna products of United States' origin in respect of all
laws, regulations and requirements affecting their internal sale, offering for
sale, purchase, transportation, distribution or use.
We look
forward to receiving your reply to this request and to fixing a mutually
convenient date for consultations.
__________
[1] Appellate Body Report and Panel Report, Action by the Dispute
Settlement Body, WT/DS381/15, 15 June 2012. See Appellate
Body Report, US – Tuna II (Mexico),
WT/DS381/AB/R, 16 May 2012, and Panel Report, US – Tuna II
(Mexico), WT/DS381/R, 15 September 2011.
[2] Appellate Body Report, US – Tuna II (Mexico), para. 172.
[3] Minutes of DSB Meeting held on 25 June 2012, WT/DSB/M/318, 27
August 2012, para. 51.
[4] Agreement
under Article 21.3(b) of the DSU, WT/DS381/17, 19 September 2012.
[5] 78
Federal Register 40997 (July 9, 2013).
[6] Recourse to Article 21.5 of the DSU by Mexico, Request for the
Establishment of a Panel, WT/DS381/20, 15 November 2013.
[7] Appellate Body Report, US – Tuna II (Article 21.5
– Mexico), WT/DS381/AB/RW, 20 November 2015, para. 8.2.
[8] Appellate Body Report and Panel Report pursuant to Article 21.5 of
the DSU, Action by the DSB, WT/DS381/28, 4 December 2015.
[9] Recourse to Article 22.2 of the DSU by Mexico, WT/DS381/29, 11
March 2016.
[10] Recourse to Article 22.6 of the DSU by the United States,
WT/DS381/30, 22 March 2016.
[11] 81 Federal Register 15,444 (March 23, 2016).
[12] Recourse to Article 21.5 of the DSU by the United States, Request
for the Establishment of a Panel, WT/DS381/32, 12 April 2016.
[13] Daily bulletin, WT/DAILYB(16)/36, 10 May 2016, and Proposed Agenda
for the 9 May 2016 DSB Meeting, WT/DSB/W/568, 4 May 2016.