Dear all,
I am intrigued by the US Tuna Panel’s approach to the question of whether the US used the AIDCP standards (which incidentally are resolutions passed by contracting parties to the Agreement on International Dolphin Conservation Program) as a basis for its dolphin-safe labelling provisions. At one point, the panel observed that in its view “the US legislator has constructed the US dolphin-safe labelling scheme building on the AIDCP foundations.” (para. 7.712) This observation appears to show that the panel was following a procedural approach to the interpretation of the phrase “as a basis for” in which it was considering only the process by which the US lawmaker put its technical regulations together.
But the panel went further and added the following in a language that sounds as if it itself was not convinced by what it was saying: “However, the strong relationship between the two bodies of rules appears to be insufficient to infer that the AIDCP standard was used as a basis for the technical regulation.” (para. 7.712)
The panel then quotes the AB’s ruling in EC Sardines where it introduced the contradiction test – i.e. that a member cannot have used a relevant international standard if its regulations in any way contradict that standard. This is a substantive test which goes beyond the process of lawmaking and effectively compares the actual requirements set by the law against those contained in the relevant international regulation.
But what I find most intriguing is the way it disposed of the issue merely referring to the US domestic court decision that was considered part of the challenged US measures. Here is how the panel put it in paras 7.716-717:
“In the case at hand, the departure from the AIDCP standard was formally stated by the Court rulings, and in particular the Hogarth ruling which describes it as an explicit refusal to adopt the standard:
‘The program was formalized into a legally-binding agreement known as the Panama Declaration, pursuant to which the United States' delegation agreed to seek a weakening of the dolphin-safe labeling standard and allow such a label to be affixed to tuna caught with purseseine nets as long as no dolphins were observed to be killed or seriously injured during the set. ...
When the delegation asked Congress to change the standard, however, Congress refused to relax its strict requirements without affirmative evidence that the tuna fishery was not significantly contributing to the slowness of the recovery rate of already depleted dolphin stocks.’
In light of this evidence, we conclude that the United States failed to base the US dolphin-safe labelling provisions on the relevant international standard of the AIDCP.”
I am surprised to see no attempt to compare how the requirements of the challenged US measures actually differ from the relevant AIDCP standards.
Apart from the substantive questions here, my question also is whether the panel’s reliance solely on what the domestic court had said on the matter meets its duty to make “an objective assessment of the matter before it”.
