Navigating Uncharted Waters: A Review of US-Tuna II

Abstract

The WTO panel report in US-Tuna II, issued on 15 September 2011, represents a milestone in WTO jurisprudence as it addresses novel interpretative questions under the Agreement on Technical Barriers to Trade (TBT Agreement). The panel's finding that the US 'dolphin-safe' labelling requirements for tuna products constitute 'technical regulations' tackled a fundamental threshold issue under the TBT Agreement and was the subject of a dissenting opinion by one panellist. Furthermore, the panel's finding that the US measures contravene Article 2.2 of the TBT Agreement since they are more trade-restrictive than necessary is also significant as it provides one of the first interpretations of this core obligation. This article discusses the issues faced by the panel and evaluates the implications of the panel's findings for future cases and possible appeals.