I'm sure Rob (and maybe others) will weigh in soon on today's WTO Appellate Body ruling in the Article 21.5 proceeding of U.S. - Tuna, but let me just quickly mention one point that occurs to me. (The facts of the measure here are complex, and I can't explain them clearly in this short post, unfortunately, so this may be a little hard to follow. See the AB report for all the details.)
From what I can tell, the crucial part of the AB's finding of violation that arises from the amended measure relates to an aspect of the measure referred to as the "determination provisions." These provisions govern how tuna is certified dolphin-safe when caught outside of the areas used by Mexican tuna fishers (Mexico was the complainant). The problem here was, the certification requirements were a little easier to satisfy for the tuna caught elsewhere as compared to the tuna caught in the fisheries used by the Mexican fishers. Specifically, for some of the relevant non-Mexican tuna fisheries, an extra dolphin-safe certification requirement (from an outside observer) exists when "there is a regular and significant association between dolphins and tuna, similar to the association between dolphins and tuna in the [Eastern Tropical Pacific]"; however, such a certification is not triggered by "regular and significant mortality or serious injury" to dolphins. It was the lack of certification in this latter situation that worried the Appellate Body, because it meant the rules were too lax for non-Mexican tuna.
See in particular paras. 6.10-11 and para. 7.258, although you have to read a lot more to fully understand all this, and I'm not sure I do yet.
So if I'm right about this (and please correct me if I'm not), the U.S. could tweak these "determination provisions" in what seems like a pretty minor way, to expand the circumstances where the extra certification is used, and thereby come into compliance with its WTO obligations. I'm not sure if this would require a legislative or a regulatory change. I'm also not sure how difficult it would be politically. Did they try to go further when they amended the measure in reaction to the original rulings, and got pushback from the industry?
Practically speaking, what would this mean? After the adverse Article 21.5 ruling, Mexico now has the right to suspend concessions. Presumably it will go ahead with this (and an Article 22.6 arbitration will follow). But if the U.S. does amend the measure, would the U.S. then request an Article 21.5 panel, so as to get itself declared in compliance, and avoid the sanctions?
ADDED: Based on a quick read of the statute (Section 1385(d)(1)(B)), it looks like a legislative change is required here, which may make this tweak kind of difficult to do.
