US Tuna Research Articles

‘관련’(relevant) 국제표준의 관련성에 대한 소고

When international standards exist, WTO members need to make domestic technical regulations based on international standards for international harmonization. Article 2.4 of the TBT Agreement is related with the issue of the definition of international standards and whether international standards exist or not. However, in the discussion of international standards, the discussion has been only focused on international standard itself and ‘relevant’ international standard has not received that much attention.
 The EC—Sardines was analyzed in light of the ordinary meaning of the term ‘relevant’ as to the relevance of ‘relevant’ international standards. The ordinary meaning of the term ‘relevant’ is ‘bearing upon or relating to the matter in hand; pertinent’, and in EC— Sardines it was recognized as a relevant international standard through interpretation in accordance with the ordinary meaning of the term.
 Using the analysis in EC—Sardines, the US—Tuna II (Mexico) panel held that the related definitions and certifications constituted a ‘relevant international standard’ under Article 2.4 of the TBT Agreement. However, US—Tuna II (Mexico) appellate body did not analyze the meaning of the term, as it did not fall under the international standard.
 In addition to the relevance of ‘relevant’ international standards, the expression ‘relevance’ also appears in the six principles of the ‘TBT Committee Decision on International Standards’. Although the same expression is used, the relevance in the ‘relevance principle’ that appears in the six principles can be seen as playing a role in preventing unnecessary international standards from being developed. The relevance of ‘relevant’ international standards can be said to play a role in harmonizing domestic technical regulations with the international standards thus developed.
 These two ‘relevance’ need to be distinguished from each other linguistically and historically as distinct concepts. The international standard of the TBT Agreement is a device to promote international harmony. However, the obligation to harmonize should not simply be based on international standards, but on ‘relevant’ international standards.

Tori lines mitigate seabird bycatch in a pelagic longline fishery

Albatross bycatch has been increasing over the past decade in the US tuna longline fishery of the central North Pacific. A controlled field experiment was used to assess the efficacy of bird scaring or tori lines as a seabird bycatch mitigation measure for this fishery in a 3-factor sampling design with other mitigation methods (blue-dyed bait, offal discharge). A multilevel geoadditive Bayesian regression modeling approach was used to assess 3 albatross-gear interaction metrics (attempted contacts, contacts, captures) recorded for each longline set using an electronic monitoring system. We found albatross contacts with baited hooks were ca. 3 times (95% highest posterior density interval [HDI] 1–7) less likely for sets equipped with tori lines rather than without tori lines. Attempts to contact baited hooks were ca. 2 times (95% HDI 1–4) less likely for tori line-equipped sets. Albatrosses were also less likely to be captured in tori line sets but captures were too few to support strong inference compared with the contact rates. Tori lines were therefore found to be an effective management measure to mitigate albatross interactions in this fishery. Offal discharge during setting, however, was associated with higher seabird interactions—but that inference was not strong since offal discharge and blue-dyed bait were confounded treatments in some sets. Nonetheless, it was apparent that neither offal discharge nor blue-dyed bait was helpful in reducing albatross interactions in this trial and so the efficacy of those measures warrants further experimental investigation.

United States – Measures Concerning the Importation, Marketing and Sale of Tuna and Tuna Products (US–Tuna II (Mexico) (Recourse to Article 21.5 of the DSU by the United States / Second Recourse to Article 21.5 of the DSU by Mexico), DS381

These compliance proceedings concern a second revised measure adopted by the United States regarding the labelling of dolphin-safe tuna products (the 2016 Tuna Measure). The 2016 Tuna Measure places three types of conditions on the use of the dolphin-safe label: (i) conditions relating to the automatic disqualification of certain tuna products (eligibility criteria); (ii) conditions relating to certifications (certification requirements); and (iii) conditions relating to record keeping and segregation of dolphin-safe and non-dolphin-safe tuna (tracking and verification requirements). Regarding the eligibility criteria, tuna harvested using large-scale driftnets on the high seas and tuna products containing tuna harvested by setting on dolphins anywhere in the world are automatically disqualified for the dolphin-safe label. Regarding the certification and tracking/verification requirements, the 2016 Tuna Measure makes a distinction between the Eastern Tropical Pacific Ocean (ETP) large purse seine fishery, on the one hand, and all other fisheries, on the other hand.

A WTO Safe Harbour for the Dolphins: The Second Compliance Proceedings in the US–Tuna II (Mexico) case

AbstractSubsequent to the 2016 modifications concerning the strengthening of the administrative requirements on dolphin-safety outside the ETP fishery zone, the second WTO compliance proceedings have finally found the US Dolphin-Safe labelling scheme compatible with the multilateral trade system. We provide an overview of the long-running US–Mexico dispute and assess the final findings of the WTO adjudicators attempting to determine the effects of the multilateral litigation on the involved non-trade values and the real winners of the case. We find an improvement in dolphin protection, though more could be achieved through a qualification of the US measure under the principle of sustainable development also contemplated in the Preamble of the WTO Agreement, as well as an enhancement on consumer information, since declaration of dolphin-safety may now be better monitored and enforced through the new discipline for non-Eastern Tropical Pacific Ocean tuna products. However, we also observe that with no change to the appearance of the label or an informational campaign, the improved credibility of the label may hardly be passed-through to the average consumer. Furthermore, despite an increase in the stringency of the regulation for their competitors, Mexican producers do not gain greater access to the US and instead have been diversifying towards other markets. We then highlight that the Appellate Body missed an opportunity to reinforce the transparency of the system by supporting the first-ever decision to grant partially open panel meetings.

Do unilateral trade measures really catalyze multilateral environmental agreements?

Unilateralism remains an opaque concept associated with discriminatory or coercive policy implications. Legal controversies about unilateralism have not prevented a continuing proliferation of unilateral trade measures in domestic fishery management regimes to deter illegal, unreported and unregulated fishing. The widespread application of trade leverage requires a refined study of the confluence of multilateral trade and environmental governance frameworks on novel state activism. This article probes the long-running trajectory of the US Tuna and Shrimp disputes within the cross-institutional context of the World Trade Organization, multilateral environmental agreements and regional fisheries management organizations. It aims to shed new light on the nexus between unilateral trade measures and multilateral environmental agreements as an evolving and mutually adaptive process. Inspired is the critical thinking on elevating trade and environmental partnerships to coherently monitor and discipline trade unilateralism in its indirect role to ameliorate global environmental problems.

Risk and Regulatory Calibration: WTO Compliance Review of the US Dolphin–Safe Tuna Labeling Regime

AbstractIn a series of recent disputes arising under the TBT Agreement, the Appellate Body has interpreted Article 2.1 to provide that discriminatory and trade-distortive regulation could be permissible if based upon a ‘legitimate regulatory distinction’. In its recent compliance decision in the US–Tuna II dispute, the AB reaffirmed its view that regulatory distinctions embedded in the US dolphin-safe tuna-labeling regime were not legitimate because they were not sufficiently calibrated to the risks to dolphins associated with different tuna fishing conditions. This paper analyzes the AB's application of the notion of risk-based regulation in the US–Tuna II dispute and finds the AB's reasoning lacking in coherence. Although risk analysis and calibration can in principle play useful roles in TBT cases, the AB needs to provide more explicit and careful guidance to WTO members and to panels to avoid the kind of ad hoc decision-making exhibited throughout the US–Tuna II dispute.

The Legitimate Regulatory Distinction Test: Incomplete and Inadequate for the Particular Purposes of the TBT Agreement

AbstractPrior to 2011, the Agreement on Technical Barriers to Trade had been somewhat neglected as a dispute-settlement mechanism, due in part to the lack of previous interpretation of the Agreement by WTO DSB Panels. In 2012, the Appellate Body adjudicated on three TBT disputes:US–Clove Cigarettes, US–Tuna II, andUS–COOL, aiming to officially interpret and clarify Articles 2.1 and 2.2 of the Agreement by creating a distinct test for a measure's consistency with these Articles. This paper explores the relevant decisions of both the Panel and Appellate Body in the three disputes which led to the creation of the ‘legitimate regulatory distinction’ test. The substance behind this phrase, placed in context, is dissected along with the associated idea of ‘even-handedness’. The test attempts to simplify future interpretations regarding what will constitute unjustifiable discrimination, but at the cost of the necessary distinction between the GATT and the TBT Agreement being blurred. The result is a test which is incomplete and which fails to take account of the special circumstances surrounding the TBT Agreement.

United States – Measures Concerning the Importation, Marketing and Sale of Tuna and Tuna Products – Recourse to Article 21.5 of the DSU by Mexico (US–Tuna II (Mexico) (Article 21.5 – Mexico), DS381)

This compliance proceeding under Article 21.5 of the DSU concerned measures taken by the United States to implement the recommendations and rulings of the Dispute Settlement Body (DSB) in US–Tuna II (Mexico). In US–Tuna II (Mexico), the DSB found that certain US measures concerning the importation, marketing, and sale of tuna products (taken together, the Original Tuna Measure) were inconsistent with the Agreement on Technical Barriers to Trade (the TBT Agreement). The Original Tuna Measure, inter alia, contained conditions under which tuna products could be labelled ‘dolphin safe’. The United States' measure taken to comply with the recommendations and rulings of the DSB consisted of an amendment to the Original Tuna Measure (the 2013 Final Rule). The Appellate Body generally referred to the Original Tuna Measure, together with the 2013 Final Rule, as the Amended Tuna Measure. The Amended Tuna Measure was the focus of this compliance proceeding.

Review - WTO Case Law in 2012

This review of WTO Panel and Appellate Body reports handed down in 2012 aims at covering the case law of the WTO through short but analytical examination of the most important final decisions of this year. The approach followed is that of reviewing all final decisions (Reports) of WTO Panels and of the Appellate Body handed down in 2012 with a few exceptions. The Appellate Body issued six reports, all of which are reviewed except for the one on EC – Large Civil Aircraft. The most interesting aspect of the activity of the Appellate Body in 2012 probably regards the three cases concerning the Agreement on Technical Barriers to Trade (TBT Agreement): US – Clove Cigarettes, US Tuna II (Mexico) and US – COOL. This case law is particularly noteworthy because from its establishment, in 1995, the Appellate Body had only once dealt with a dispute concerning the TBT Agreement (EC – Sardines), in 2002. Therefore, the interpretation by the AB of key provisions of the TBT Agreement in these three cases stands as a major development whose import goes beyond the individual cases decided. Technical barriers to trade of various types, such as prohibition of the import of certain product (at issue in US – Clove Cigarettes), rules on the origin of products for environmental reasons (in US – Tuna II) and labeling requirements for information of the consumer (in US – COOL), appear to have become a major instrument of commercial policy of certain WTO members, a potential protectionist device and a source of frictions between WTO Members.

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

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.

The TBT Agreement Meets the GATT: The Appellate Body Decision in US – Tuna II (Mexico)

In US - Tuna II (Mexico), the WTO Appellate Body ruled that the US 'dolphin safe' labelling scheme for canned tuna violated the national treatment obligations of the United States under the WTO Agreement on Technical Barriers to Trade (TBT Agreement). However, it rejected Mexico's claims that the labelling law was 'more trade-restrictive than necessary' to fulfil the US objectives of dolphin conservation. The decision of the Appellate Body in US - Tuna II (Mexico) and its earlier ruling in US - Clove Cigarettes2 provide a clear indication of the tribunal's interpretive approach to key provisions of the TBT Agreement. Importantly, the Appellate Body has adopted a competition-based approach to determining whether a technical regulation provides 'less favourable treatment' to imported like products. The Appellate Body decisions thus root the national treatment disciplines of the TBT Agreement firmly within the jurisprudence of the GATT.

The Future of Environmental Labelling: US – Tuna II and the Scope of the TBT

The Panel Report in the World Trade Organization (WTO) dispute United States - Measures Concerning the Importation, Marketing and Sale of Tuna and Tuna Products (hereinafter 'US - Tuna II') was released on 15 September 2011. This case, which concerned the US's 'dolphin-safe' tuna labelling programme, was important to WTO watchers for several reasons. In particular, it addressed several issues of first impression regarding the scope of the Agreement on Technical Barriers to Trade (TBT) (hereinafter 'TBT Agreement') and contributed another piece to the ongoing puzzle of how to balance international trade obligations with domestic regulatory space in the WTO. The authors contend that the Panel Report supports the idea that labelling is a 'safe' option for creating regulatory policies that may comply with WTO standards, but the fact that the measure was ultimately defeated means that policymakers will have to think carefully about how to design their labelling schemes in order to avoid incompatibility with their international trade obligations.

The skinny on tuna fat: health implications

Dietary n-3 (omega-3) and n-6 (omega-6) PUFA have significant implications in health and disease prevention. Marine life is rich in long-chain n-3 PUFA. Children and adults in North America are reluctant fish eaters; canned tuna is a common fish in children's diets. Although a multitude of tuna products are available, their respective PUFA contents have not been well described. The aim of the present study was to compare the fatty acid (FA) profiles of different commercially available US tuna products. Fat and FA composition of eight products randomly selected from two US suppliers were analysed with capillary GC after lipid extraction. Large north-eastern US grocery store chain. Canned tuna. Energy from fat varied from 3 to 33 % and the essential FA (EFA) linoleic acid (18 : 2n-6) and α-linolenic acid (18 : 3n-3) varied tenfold. DHA varied between 90 and 770 mg/serving. The n-6:n-3 ratio was 3:1-4:1 in oil-packaged products, 2:1-7:1 in packaged tuna salads and 1:3-1:7 in water-packaged products. A similar magnitude of differences was seen in the ratio between arachidonic acid (20 : 4n-6) and DHA. Light tuna canned in water may be a better choice of providing n-3 PUFA to individuals in a healthy population, whereas oil-packaged products may be preferable for those individuals with a need for increased EFA, such as for patients with cystic fibrosis. Awareness regarding PUFA content may aid in consumer product choices and health-care provider advice.

Bycatch: interactional expertise, dolphins and the US tuna fishery

The burgeoning field of studies in expertise and experience (SEE) is a useful theoretical approach to complex problems. In light of SEE, examination of the controversial and well known case study of dolphin bycatch in the US tuna fishery, reveals that effective problem-solving was hindered by institutional tensions in respect of decision-making authority and difficulties with the integration of different expertises. Comparing the profiles of four individuals, who played distinct roles in the problem-solving process, I show that (1) to address a complex problem, a suite of contributory expertises—rarely found in one individual—may be required; (2) formal credentials are not a reliable indicator of who possesses these necessary expertises; (3) interactional expertise and interactive ability are useful tools in combining the contributory expertises of others to yield a desirable collective outcome; and (4) the concepts of contributory expertise and no expertise are useful tools for understanding the actual contribution of various parties to the problem-solving process.

Economic Benefits of Dolphins in the United States Eastern Tropical Pacific Purse-Seine Tuna Industry

This paper provides a profit-maximizing model with vessel-level dolphin mortality limits for purse seiners harvesting tunas in the eastern tropical Pacific Ocean. The model analytically derives the shadow price (estimated economic value) for dolphin mortality, the fishing-fleet size, and the annual tuna harvest as functions of a few key fishing parameters. The model also provides a statistical method to determine the accuracy of all needed parameter estimates. The paper then applies the model to the year 1996 and the period from 1985 to 1987. The shadow price measures the economic value to the US tuna fleet of dolphins lost in the harvesting of tuna. This value is essential when attempting to evaluate the economic benefits and costs to society of any action designed to reduce the mortality of dolphins in the harvesting of tuna in the eastern tropical Pacific Ocean.

Environmental lobby splits on US tuna bills

Environmental lobby splits on US tuna bills

Composition of the 1991 incidental kill of small cetaceans in the eastern tropical Pacific US tuna fishery and two California gillnet fisheries : K. M. Peltier, S. J. Chivers & S. Kruse, Report - International Whaling Commission, 43, 1993, pp 401–406

Data are presented for the observed incidental kill of small cetaceans on 40 US tuna purse-seine vessel-trips and 794 California gillnet vessel-trips. This is the first complete year (1991) that data were collected by observers for California gillnet fisheries. There were 1.002 cetaceans killed incidentally in the US tuna fishery and 69 cetaceans killed incidentally in the California gillnet fisheries sampled. The observed incidental kills are summarized and reported here by geographic area. species. stock and sex. Where life history data were collected. the summary also includes a length distribution for each species and sex. as well as the reproductive condition for the females collected.