Following up on my post from yesterday, here are a couple quick thoughts on the tuna decision (http://www.worldtradelaw.net/reports/wtoab/us-tunamexico(ab).pdf ).
First, the Appellate Body upheld the finding that the measure is a "technical regulation". Second, they reversed the finding of violation under TBT 2.2. I haven't read those sections yet, though, so I have no thoughts on the reasoning there.
But I did read quickly through TBT 2.1. Here, the Appellate Body reversed the panel's finding of no violation, and instead found a violation. I have to admit that I did not expect this result. Here's one thing in particular that surprised me. In paragraph 206, the Appellate Body explains the panel's findings as follows:
The Panel explained that, as of 1990, when the first version of the DPCIA was enacted, "the United States and Mexico were in a comparable position with regard to their fishing practices in the ETP, in that both of them had the majority of their fleet operating in the ETP composed of purse seine vessels potentially setting on dolphins".432 While US vessels "gradually discontinued setting on dolphins to catch tuna, and abandoned the practice entirely in 1994, four years after the enactment of the measures"433, the Mexican fleet "concentrated its efforts on complying with the AIDCP requirements on observer coverage and fishing gear and equipment" rather than abandoning setting on dolphins.434 As a result, the Mexican fleet and other fishing fleets that chose to continue to set on dolphins "were not eligible for dolphin-safe labelling under the existing US measures, while tuna caught without setting on dolphins remained eligible."435 The Panel was therefore not persuaded that "any current discrepancy in the[ ] relative situations [of the Mexican and other fishing fleets]" was a result of the US "dolphin-safe" labelling provisions rather than the result of the choices of private actors.
To me, this emphasis on the situation at the time of enactment was an important part of the panel's reasoning. But I don't see that the Appellate Body addressed the issue anywhere. I'm not sure why they did not. They do talk about private actors, but that's a separate issue, I think.