I thought this was a good question from the panel in the U.S. - Tuna Labeling (DS381) dispute:
111. To the United States: Please clarify the relevance of your arguments relating to the justification of the measure in terms of dolphin protection, such as the arguments related to the effects of setting on dolphins and the absence of recovery, for the Panel's consideration of Mexico's claims under Articles III:4 and I:1 of the GATT 1994 and 2.1 of the TBT Agreement.
Here was the U.S. response:
32. The U.S. dolphin safe labeling provisions treat imported and domestic products the same; the distinctions drawn by the provisions are not based on origin. Any different treatment (in the sense of Article III:4) or advantage (in the sense of Article I:1) accorded by the U.S. provisions is based on whether the tuna products contain tuna caught in a manner harmful to dolphins. The facts showing the harm to dolphins caused by setting on dolphins demonstrate why the U.S. measures draw a distinction between setting on dolphins and other methods of catching tuna. The evidence presented by the United States clearly shows that setting on dolphins causes significant harm to dolphins, and the purse seine tuna fishery in the ETP is the most likely reason that the populations remain depleted. These facts show that the conditions under which tuna products may be labeled dolphin safe are based on whether the tuna was caught in a manner harmful to dolphins and are not based on origin.
33. In addition, the facts regarding the harm caused to dolphins by setting on dolphins to catch tuna help to show a clear relationship between the objectives of the measure, which are to reduce the harm to dolphins and ensure consumers are not misled by dolphin safe claims, and conditions under which tuna products can be labeled dolphin safe under the U.S. provisions. As elaborated in the U.S. response to Question 147 below, the general principle under Article III is that measures shall not be applied so as to afford protection to domestic production. The clear relationship between the objective of the U.S. measure and the conditions under which tuna products may be labeled dolphin safe supports the conclusion that the U.S. measures do not use fishing technique as a means to afford protection to U.S. tuna products. Instead, the U.S. dolphin safe labeling provisions help to prevent the serious harm to dolphins, including in populations that remain depleted, caused by setting on dolphins to catch tuna.
Basically, the U.S. seems to be saying that the non-discriminatory intent here (dolphin protection) shows that the measures are "not based on origin"; and that the measures are not applied to "so as to afford protection," under Article III:1.
More on this in the response to Question 147. Here's the question:
147. To the United States: During the second substantive meeting, Mexico observed that the US arguments concerning any objectives that the United States may have are irrelevant to the claims Mexico is making under Articles I and III of the GATT and Article 2.1 of the TBT Agreement, and are only relevant to its claims under Article 2.2 of the TBT Agreement. Please comment.
And here's the U.S. answer:
80. The United States disagrees with Mexico’s assertion. As the Appellate Body has stated, the general principle set forth in Article III:1 informs the rest of the Article III and is a “‘guide tounderstanding and interpreting the specific obligations contained’ in the other paragraphs of Article III, including paragraph 4.” The general principal under Article III is that measures shall not be applied so as to afford protection to domestic production. In that regard, the United States has reiterated in its arguments under Article III that the objectives of the dolphin safe labeling provisions are dolphin protection and ensuring consumers are not misled or deceived about whether dolphins were harmed when the tuna was caught. It has explained that there is a clear relationship between these objectives and conditions under which U.S. measures allow tuna products to be labeled dolphin safe. This clear relationship, among other evidence, counters Mexico’s assertion that the U.S. measures use fishing technique as a means to discriminate against Mexican tuna. In contrast, in Chile – Alcohol there was no such relationship between the stated criteria on which products were subject to a higher tax rate (alcohol content) and the stated objectives of the Chilean tax measure, and the Appellate Body consider this as a factor in concluding that the Chilean tax measures were applied so as to afford protection to domestic product.
81. The clear relationship between the objectives of the U.S. measures is also relevant to Mexico’s claims under Article I:1 of the GATT 1994 and Article 2.1 of the TBT Agreement. In both cases, the clear relationship between the objective of the U.S. measure and the conditions under which tuna products may be labeled dolphin safe is evidence supporting the conclusion that the U.S. measures do not use fishing technique as a means to discriminate against Mexican tuna products.
82. Thus, the objective of a measure and whether there is a clear relationship between that objective and the treatment the measure accords is relevant when analyzing a claim that a measure discriminates against imported products, in particular when the claim is that a measure uses a seemingly origin-neutral criterion to in fact discriminate against imported products.
83. In this regard, it is important to emphasize that the U.S. argument is not that a determination of whether a measure accords less favorable treatment to imported products should turn on the objective of the measure. The objective of a measure discerned from its architecture, structure and design is one piece of evidence among others. In this dispute, not only are the objectives of the U.S. measure aimed at ensuring consumers are not misled and protecting dolphins, and not protectionism, but more importantly the U.S. measures are structured and designed to fulfill their objectives of ensuring consumers are not mislead and protecting dolphins. In particular, the U.S. measures set out conditions for labeling tuna dolphin safe that ensure that tuna products labeled dolphin safe do not contain tuna caught by setting on dolphins (a fishing technique that is harmful to dolphins) and that contribute to dolphin protection by ensuring the U.S. market is not used to encourage a fishing technique that is harmful to dolphins. Further, the facts on record in this dispute do not support Mexico’s contention that, although the measures are on their face origin-neutral and do not have protectionism as their objective, they in fact accord less favorable treatment to imported products
Just to be clear, the U.S. seems to be arguing for intent to play a role in GATT Article I:1 and TBT Agreement Article 2.1, not just GATT Article III:4.
Questions 146, 148, 149, 150, 151, 152, 153, 154, 157 and 160, and the U.S. responses, are all very interesting in relation to various aspects of non-discrimination. I will try to come back to some of the issues raised in the other questions soon. The panel is asking great questions, and the U.S. is offering detailed responses. I suddenly feel hopeful that we are getting close to resolving some long-standing uncertainty about GATT/WTO non-discrimination issues.
