A WTO panel was established on Monday in the new tuna-dolphin dispute (DS381). During the meeting, the U.S. had this to say:
- Mr. Chairman, the United States is disappointed that Mexico has chosen to move forward with its request for panel establishment a second time.
- As we explained at the DSB meeting on March 20, the United States considers its dolphin-safe labeling regime central to the protection of the dolphin population in the Eastern Tropical Pacific ocean. Furthermore, we are confident that the U.S. dolphin safe labeling measures that Mexico has challenged are consistent with U.S. WTO obligations.
- In addition, Mr. Chairman, we are very concerned that Mexico is proceeding with this request for another reason. On March 24, 2009, the United States invoked Article 2005(4) of the North American Free Trade Agreement.
- In that provision, the NAFTA parties agreed that certain disputes which pertain to matters arising under the WTO Agreement and the standards-related provisions of the NAFTA, and which concern human, animal or plant life or health or the environment and raise factual issues regarding the environment or conservation, would be heard – at the responding party’s option – solely under the NAFTA’s dispute settlement procedures. This dispute meets the criteria set out in that NAFTA provision, and the United States has the right to have this dispute considered under the NAFTA.
- We understand that a panel will be established today. The United States deeply regrets Mexico’s decision to seek establishment of a WTO panel despite its prior agreement with the other NAFTA parties on a choice‑of‑forum provision in our free trade agreement, and our invocation of that provision. We urge Mexico to reconsider its position. We will also be considering our options moving forward.
[Second intervention:]
- Mr. Chairman, this meeting is perhaps not the best place to debate the meaning of NAFTA’s dispute settlement provisions. However, in light of Mexico’s comments, it may be helpful to say that, at the time the NAFTA was negotiated, the NAFTA parties understood that disputes concerning standards-related measures for the protection of human, animal or plant life or health or the environment could arise under either the NAFTA or the WTO. As a consequence, the NAFTA parties specifically included the NAFTA choice of forum provision to give the responding party the right to have such disputes heard before a NAFTA panel.
- We are very concerned that Mexico’s approach would mean that NAFTA Article 2005(4) would never apply. That was certainly not the intention of the NAFTA parties, and it is a cause for serious concern.
- We appreciate Mexico’s acknowledgment that the international community may have an interest in this dispute. We hope that we can count on Mexico’s cooperation in making sure that the proceedings in this dispute – whether in the WTO or under the NAFTA – are as transparent as possible, including by making submissions publicly available when filed and by opening the panel hearings to public observation.
The NAFTA provision they cite, Article 2005, states:
Article 2005: GATT Dispute Settlement
1. Subject to paragraphs 2, 3 and 4, disputes regarding any matter arising under both this Agreement and the General Agreement on Tariffs and Trade, any agreement negotiated thereunder, or any successor agreement (GATT), may be settled in either forum at the discretion of the complaining Party.
...
4. In any dispute referred to in paragraph 1 that arises under Section B of Chapter Seven (Sanitary and Phytosanitary Measures) or Chapter Nine (Standards-Related Measures):
(a) concerning a measure adopted or maintained by a Party to protect its human, animal or plant life or health, or to protect its environment, and
(b) that raises factual issues concerning the environment, health, safety or conservation, including directly related scientific matters,
where the responding Party requests in writing that the matter be considered under this Agreement, the complaining Party may, in respect of that matter, thereafter have recourse to dispute settlement procedures solely under this Agreement.
I'm going to have to think about this one a bit more before I have anything to say about it. If anyone else has thoughts, though, USTR has requested comments on the case here.
On a somewhat related topic, although it will probably not come up in the case, blog reader Chad Bown points me to the following and notes, "who said Dolphins weren't for free trade?":
Thousands of dolphins block Somali pirates
Thousands of dolphins blocked the suspected Somali pirate ships when they were trying to attack Chinese merchant ships passing the Gulf of Aden, the China Radio International reported on Monday.
The Chinese merchant ships escorted by a China's fleet sailed on the Gulf of Aden when they met some suspected pirate ships. Thousands of dolphins suddenly leaped out of water between pirates and merchants when the pirate ships headed for the China's.
The suspected pirates ships stopped and then turned away. The pirates could only lament their littleness before the vast number of dolphins. The spectacular scene continued for a while.
