I was struck by this paragraph of the WTO panel report in the Article 21.5 tuna case:
7.197. ... Mexico appears to accept that, as the Appellate Body found, the system currently in place in the ETP fully addresses the risks posed to dolphins by setting on dolphins in the ETP. Its complaint is that the amended tuna measure, like the original measure before it, does not fully address the risks posed by other fishing methods in the ETP and other oceans, and therefore is not even-handed. Accordingly, the essence of Mexico's argument is not that the United States should remove the certification requirements that exist in the ETP, but, conversely, that "it is both appropriate and necessary to have an independent observer requirement for tuna fishing outside the ETP" – and, indeed, that without imposing an observer requirement for vessels other than large purse seiners in the ETP, the amended tuna measure cannot be even-handed as required under Article 2.1 of the TBT Agreement.
Maybe I'm reading too much into this, but is it possible that Mexico does not expect the U.S. to amend the measure so as to allow Mexican-caught tuna to use the dolphin-safe tuna label, and instead it is seeking to push U.S. regulation of domestic/other foreign tuna fishing to be more strict? In other words, is it using this case to impose additional costs on its competitors? If so, should environmentalists be applauding this case?
