Simon our leader just pointed out to me that Chelliah was also on the Tuna/Dolphin III panel (she replaced one of the originally named panelists who passed away during the proceedings).
The Tuna/Dolphin finding that there was no violation by the US of non-discrimination in TBT (Article 2.1) is consistent with the deferential approach in the US-Rules of Origin panel I mentioned in my earlier post (of course, on that issue the panel was reversed by the AB, which adopted a different analytical framework for understanding non-discrimination in TBT. Of serious concern, however, is the TBT 2.2 approach of the panel in Tuna/Dolphin, where the panelists invented a less-trade restrictive alternative not proposed by the complainant with no evidence on the record as to its feasibility or effectiveness (see my amicus submission, available on the worldtradelaw.net site; fortunately, the AB reversed on 2.2). Nevertheless, there are passages in the Tuna/Dolphin panel report that suggest an openness to animal welfare concerns, such as a clear statement of the legitimacy of the US objective of protecting dolphins, even if not an endangered species, "allowing Members to pursue policies that aim at...protecting individual animals or species whose sustainability as a group is not threatened."(para. 7.347) This is signficant since Canada has gone so far as to claim that protecting seals is not a legitimate objective.
