The Appellate Body Report in US – Tuna II and Its Impact on Eco-Labelling and Standardization

Abstract

The Appellate Body of the World Trade Organization (WTO) released to the public its final Report on the dispute United States - Measures Concerning the Importation, Marketing and Sale of Tuna Products (hereinafter 'US - Tuna II') on 16 May 2012.The dispute was object of a growing interest because of its impact on the debate between trade and environment. Specifically, the case addressed substantial issues of scope for the application of the Agreement on Technical Barriers to Trade (hereinafter 'TBT Agreement'), like the proper legal characterization of state measures and the application of the Agreement to non product-related process and production methods (hereinafter 'npr-PPMs'). Furthermore, the ruling clarified other crucial provisions such as the requirements 'international standardizing organizations' have to comply with. This contribution will review the Appellate Body's findings that are the most relevant for the practice of environmental labelling and sustainability standardization, and it will assess the implications for WTO Member States' regulatory autonomy and the possibility of employing market-based instruments of regulation.