United States - Measures Concerning the Importation, Marketing and Sale of Tuna and Tuna Products (WT/DS381)
Third Party Oral Statement of Australia
- United States - Measures Concerning the Importation, Marketing and Sale of Tuna and Tuna Products (WT/DS381) [PDF 45 KB]
Geneva, 19 October 2010
Mr Chairman, Members of the Panel.
- Today, Australia will address some important questions of interpretation
in relation to Mexico's claim that the US dolphin safe labelling measures
at issue in this dispute are inconsistent with Articles 2.1 and 2.2 of the
TBT Agreement.1 Australia notes that many of these
questions, which have significant systemic implications, have not yet been
specifically addressed by a panel or the Appellate Body.
A. Technical Regulation
- First, I would like to recall Australia's views on the threshold
question of whether the US dolphin safe labelling measures constitute a technical
regulation within the meaning of paragraph 1 of Annex 1 to the TBT Agreement.
- On the issue of whether compliance with the US dolphin safe labelling measures
is mandatory,2 Australia notes that the US dolphin
safe labelling measures do not require tuna products to be labelled
or to contain certain information on the label; nor do they prevent the
sale in the United States of tuna products containing tuna harvested in a
particular manner or tuna products that do not bear the 'dolphin safe' label.
Rather, the measures regulate the circumstances in which the 'dolphin safe'
label may be used on tuna products. Australia therefore considers that the
US dolphin safe labelling provisions are not mandatory on their face and thus
on this basis do not fall within the definition of a 'technical regulation'
in Annex 1.1 of the TBT Agreement.3
- Australia notes however Mexico's claim that the US dolphin safe labelling
measures, if not a priori mandatory, are nonetheless de facto
mandatory.4 Australia shares New Zealand's
view5 that there may be circumstances where a
government's actions in conjunction with an otherwise voluntary measure effectively
make compliance with the measure mandatory. Australia also agrees with New
Zealand that 'a measure that is not a priori mandatory will only
constitute a "technical regulation" in cases where it is clearly
warranted by the facts'.6 In Australia's view,
there must be some factor in the measure itself or the governmental actions
surrounding the measure which mean for the relevant industry that a measure
which appears to be voluntary on its face is effectively made 'binding or
- In the circumstances of this dispute, Mexico's argument would appear to
require that the effects in the market of consumer purchasing preferences
flowing from information provided via the 'dolphin safe' label be attributable
to government as a mandatory measure. However, Australia submits
that consumer preferences alone cannot determine whether a labelling
requirement is voluntary or mandatory. Further, such a proposition would result
in all labelling requirements falling within the definition of a 'technical
regulation' and render meaningless the definition and disciplines of the TBT
Agreement applying to standards.
B. Mexico's Claims under Articles 2.1 and 2.2 of the TBT Agreement
- Should the Panel find that the US dolphin safe labelling measures
constitute a 'technical regulation' within the meaning of Annex 1.1 of the
TBT Agreement, important issues of interpretation would arise for consideration
by the Panel in relation to Mexico's claims under Articles 2.1 and 2.2 of
the TBT Agreement.
1. Article 2.1 of the TBT Agreement
- I turn first to the interpretation of Article 2.1 of the TBT Agreement.
- Australia notes that the panel in EC - Trademarks and Geographical Indications
(Australia) recognised the similarity in the terms used in Article 2.1
of the TBT Agreement and Article III:4 of the GATT 1994.8
Australia therefore considers that the analysis of 'treatment no less favourable'
developed under GATT Article III:4 would assist in the interpretation of Article
2.1 of the TBT Agreement.
- Australia considers that, like Article III:4 of GATT 1994, Article 2.1 of
the TBT Agreement 'obliges Members of the WTO to provide equality of competitive
conditions for imported products...' in respect of technical regulations.9
- Thus, Australia submits that when considering whether Mexican tuna products
have been accorded 'treatment less favourable' under Article 2.1 of the TBT
Agreement, the Panel should have regard to the test set out by the Appellate
Body in Korea - Beef, in the context of Article III: 4 of GATT 1994,
by examining whether the measures at issue modify the conditions of competition
in the US market to the detriment of imported Mexican tuna products.10
Furthermore, Australia considers that whether a measure is 'origin-neutral',
as asserted by the United States11, while indicative,
is not in itself determinative of whether a measure accords less favourable
treatment to imported products.
- Australia submits that this Panel could obtain guidance from the Appellate
Body's views in Korea - Beef that 'the intervention of some private
choice does not relieve [a Member] of responsibility under the GATT 1994 for
the resulting establishment of competitive conditions less favourable for
the imported product...'.12 Nevertheless, the
Appellate Body also noted that 'what is addressed by Article III:4 is merely
the governmental intervention that affects the conditions under which
like goods, domestic and imported, compete in the market within a Member's
- Thus, Australia submits that a relevant question for the Panel is whether,
having regard to the evidence, the (alleged) inability of Mexican tuna products
to access the US 'dolphin safe' label is the result of governmental action
modifying the conditions of competition in the US market to the detriment
of Mexican tuna products, having regard to the fundamental thrust and effect14
of the measures at issue.
2. Article 2.2 of the TBT Agreement
(a) Interpretation of Article 2.2
- I turn now to important issues of interpretation arising under
Article 2.2 of the TBT Agreement.
- In Australia's view, the first sentence of Article 2.2 establishes the fundamental
obligation of Members with respect to 'technical regulations' to 'ensure that
technical regulations are not prepared, adopted or applied with a view to
or with the effect of creating unnecessary obstacles to international
trade'. The second sentence of Article 2.2 explains that '[f]or this
purpose, technical regulations shall not be more trade-restrictive than
- In other words, the second sentence of Article 2.2 sets out the conditions
technical regulations must meet in order to satisfy the fundamental obligation
contained in the first sentence of Article 2.2. Australia submits that the
Panel should bear in mind this fundamental obligation in assessing whether
a technical regulation is 'more trade-restrictive than necessary to fulfil
a legitimate objective'.
(b) Legitimate objective
- Turning first to the interpretation of 'legitimate objective', Australia
recalls the statement of the Panel in EC Sardines that 'Article
2.2 and [the] preambular text affirm that it is up to the Members to decide
which policy objectives they wish to pursue and the levels at which they wish
to pursue them'.15 Australia submits that under
Article 2.2 of the TBT Agreement, as under Article 2.4, 'there must be an
examination and a determination on the legitimacy of the objectives
of the measure'.16 That is, there must be an
assessment of whether the stated objective(s)17 of
a technical regulation put forward by the respondent can be considered 'legitimate'
within the meaning of Article 2.2.
- However, Australia submits it is not relevant to this assessment whether
the objective(s) put forward by the United States for the US dolphin safe
labelling measures are considered to be appropriate. In particular,
Australia submits it is not relevant to consider whether the measures at issue
'protect animal life or health or the environment in the general sense', or
whether the objective of the US measures 'is narrower than the protection
of animal life or health or the environment', as argued by Mexico.18
(c) More trade restrictive than necessary to fulfil a legitimate objective
- Australia considers that the interpretation of the phrase 'more
trade restrictive than necessary to fulfil a legitimate objective' under Article
2.2 calls for a 'weighing and balancing' of the elements contained in that
phrase, similar to the weighing and balancing process required in a 'necessity'
analysis under GATT Article XX.
- Australia therefore submits that the Panel's examination of the phrase 'more
trade restrictive than necessary to fulfil a legitimate objective' should
- whether the measure is trade restrictive;
- whether the measure is 'to fulfil' a legitimate objective; and
- whether there are other reasonably available alternatives that may be
less trade restrictive while still fulfilling the legitimate objective
at the level of protection the Member considers appropriate.
(i) 'trade restrictive'
- Addressing each of these elements in turn, Australia agrees with
Mexico that measures that are 'trade restrictive' include those that impose
any form of limitation on imports, discriminate against imports or deny competitive
opportunities to imports.19
(ii) 'to fulfil' a legitimate objective
- Australia considers a relevant issue for the Panel to consider
is the nexus between the measure and the stated objective in the context of
Article 2.2 of the TBT Agreement, which requires that a technical regulation
be 'to fulfiV a legitimate objective.
- Australia considers that Article 2.2, in requiring that the measure not
be more trade restrictive than necessary 'to fulfil' a legitimate objective,
means that the measure must carry out, or at least have the capacity to carry
out, its legitimate objective. Thus the relevant question in this dispute
is whether the US dolphin safe labelling measures carry out, or have the capacity
to carry out, their stated objectives.20
- In addressing this question, the evidence before the Panel concerning the
perceptions and expectations of US consumers relating to the meaning of the
'dolphin safe' label and the criteria behind its use will be crucial. In particular,
Australia submits that a relevant consideration for the Panel is whether the
evidence before it shows that consumers in fact understand the criteria
behind the 'dolphin safe' label and accordingly base their purchasing decisions
not only on whether dolphins were killed or seriously injured during harvesting,
but also on whether the tuna contained in tuna products was caught in a particular
(iii) reasonably available alternatives
- Australia submits that the question of whether there are other
reasonably available, less trade restrictive alternatives21
is pertinent to the Panel's consideration of whether a measure is 'more trade
restrictive than necessary'.
- Australia also considers that the degree of trade-restrictiveness
of the US dolphin safe labelling measures (and possible alternatives to those
measures) is a relevant consideration for the Panel in examining this element
of Article 2.2.22
- Australia submits that the level of protection considered appropriate by
the United States in relation to the US dolphin safe labelling measures is
another relevant factor in the Panel's examination of this issue.23
- Finally, the United States suggests that 'the U.S. dolphin safe labeling
provisions together with the measure called for under the AIDCP and other
provisions of U.S. law form part of a comprehensive U.S. strategy to protect
dolphins'.24 Without commenting on the merits
of the United States' claim, Australia agrees that the examination of whether
the US dolphin safe labelling measures form 'part of a comprehensive strategy'
to address the protection of dolphins is a relevant factor in the Panel's
consideration of whether there are other reasonably available, less trade
restrictive alternatives to the measures at issue.25
(d) Taking account of the risks non-fulfilment would create
- Australia submits that a finding as to whether a technical regulation
is 'more trade restrictive than necessary to fulfil a legitimate objective'
must be weighed against the risks non-fulfilment of the particular legitimate
objective would create. Such risks may differ depending on the nature
of the legitimate objective the measure is designed to fulfil and the
level of protection a Member considers appropriate. If the risks associated
with non-fulfilment of a particular objective would be high, then the measure
may still be justified regardless of its trade-restrictiveness.
- While the terms of GATT Article XX do not call expressly for an assessment
of the 'risks non-fulfilment would create', Australia submits there are parallels
with the 'necessity' test adopted by the Appellate Body, which includes consideration
of the importance of the interests or values at stake.26
Australia considers that such consideration is relevant to the determination
of the issues in this dispute.
- Thank you Mr Chairman, Members of the Panel. Australia would be pleased
to provide answers to any questions from the Panel.
1 First written submission of Mexico, paragraph 192.
2 Appellate Body Report, EC - Sardines, WT/DS231/AB/R,
adopted 23 October 2002, paragraph 176 citing Appellate Body Report, EC
- Asbestos, paragraphs 67-70.
3 See also First written submission of the United States (corrected
version), paragraph 120.
4 First written submission of Mexico, paragraph 203.
5 Third party written submission of New Zealand, paragraph
6 Third party written submission of New Zealand, paragraph
7 Appellate Body Report, EC - Asbestos, paragraph
8 Panel Report, EC - Trademarks and Geographical Indications
(Australia), paragraph 7.464.
9 Appellate Body Report, Korea - Beef, paragraph 135,
citing Appellate Body Report, Japan - Taxes on Alcoholic Beverages, pp
16-17 (emphasis added)
10 Appellate Body Report, Korea - Beef, paragraph
11 First written submission of the United States (corrected
version), paragraph 106.
12 Appellate Body Report, Korea - Beef, paragraph
13 Appellate Body Report, Korea - Beef, paragraph
14 Appellate Body Report, Korea - Beef, paragraph 142.
15 Panel Report, EC - Sardines, paragraph 7.120.
16 Appellate Body Report, EC - Sardines, paragraph
286 (emphasis added).
17 Appellate Body Report, EC - Sardines, paragraph
18 First written submission of Mexico, paragraphs 207-208.
19?First written submission of Mexico, paragraph 217. See
also Panel Report, India - Autos, paragraph 7.265; Panel Report, EC
- Bananas III (Article 21.5 - Ecuador II), paragraph 7.330; Panel Report,
EC - Bananas III (Article 21.5 - US), paragraph 7.677.
20 See also First written submission of United States, paragraph
21 See e.g. Appellate Body Report, EC - Asbestos, paragraphs
170-174; Appellate Body Report, Korea - Beef, paragraphs 165-166; Panel
Report, US - Gasoline, paragraph 6.24; GATT Panel Report, US -
Section 337 Tariff Act, paragraph 5.26.
22 Appellate Body Report, Korea - Beef, paragraph
23 Appellate Body Report, Brazil - Tyres, paragraph
156 citing Appellate Body Report, US - Gambling, paragraph 311; see
also sixth preambular paragraph, TBT Agreement.
24 First written submission of the United States (corrected
version), paragraph 171.
25 Appellate Body Report, Brazil - Tyres, paragraphs
154, 172, 211.
26 Appellate Body Report, Brazil - Tyres, paragraph