INTERNATIONAL TRADE LAW
A) Relationship between Trade and Social Values and WTO's answer
Currently, the defense and the preservation of human health, animals' lives and the environment are factors that any countries should take into account, especially with regard to trade and commerce.
The globalization and the development of international trade has increased the risk of environmental damage and harm to human, animal and plant life but also the awareness of the the world of the need of safeguard these social values.
However, governments are concerned that an excessive consideration of social values in the public action can lead to restrict the flow of trade.
The relationship (1) between international trade and environment is all about the attempt to identify a balance and an equilibrium between the need to defend these social values and the purpose of the Members of the World Trade Organization (WTO) to liberalize trade and decrease the trade barriers. Beside the liberalization of the trade, another objective of the WTO, is the promotion of trade without discrimination (2). All the Members of the WTO should treat all the trading partners in the same way. Any advantage that a Member accords to another should be guaranteed to all the other Members. This is the important and fundamental principle of Most-favorite Nation. (3) Thus, it is imposed equality between all the contracting parties.
Moreover WTO Members should not discriminate in order to provide benefit to like domestic products. (4) This sort of Protectionism is banned. Members should not enact measures that try to advantage local industries to the detriment of importing countries. This concept is expressed in another principle of the GATT, called the principle of "national treatment". (5)
Thus, the problem becomes more complex and can be summarised in this question: "How to reconcile the protection of these priceless values with these essential objectives, key basics of the entire WTO system?"
The WTO answer is reflected in one main provision, the article XX of the GATT, entitled "General Exception". (6) This provision realizes one compromise, allowing that the main objectives of the WTO system can be overcome in presence of more important values, listed in the provision, considered as "rights" of each Members (7). WTO Members, in accordance with this provision, can enact measures in breach with the other provisions of the GATT but if there are two conditions: first of all, these measures must be necessary to pursue legitimate objectives, such as the need to protect human, animal or plant life or health and they must not be means of arbitrary or injustificable discrimination between countries where the same conditions prevail or a disguised restriction on international trade.
The problem is that several times we have had WTO Members engaged in a distorted application of this provision, instances where countries have invoked the general exceptions when there were no basis (8). Governments enacted measures in order to realize their social interests, which were actually discovered to be unnecessary in order to achieve those legitimate objectives or excessively restrictive of the trade. The role of the word "necessary" in this provision has been misunderstood too many times. (9)
Thus, the tension between the liberalization of trade and environmental purposes is increased because of the behavior of the States, which adopted measures that apparently are addressed to fulfil these social values but that actually are just a tool to discriminate between imported products and like domestic products or ,anyway, excessively trade-restrictive. The attention to these social values is just an excuse to adopt measures which inderectly protect the local industries, curtailing the trade.
B) Role of social labels in this relationship
The main goal of this paper is the demonstration of the existence of measures that allow social concerns to be considered and protected without an excessive restriction of the trade and without obstacles to the achievement of the WTO's objectives. Measures that can hardly be used as be means of arbitrary or injustificable discrimination between countries where the same conditions prevail or a disguised restriction on international trade and that can, instead, easily serve for the achievment of social purposes.
In particular, I am talking about the "social labellings", tool that permits a form of collaboration between two fields, trade and einvornment, always considered irreconcilable and an instrument, whose use have increased in the last years. Ecolabel index, the largest global directory of ecolabels, which are types of social labels related to the protection of the environment, tracked, in 2016, 463 ecolabels in 199 countries, and 25 industry sectors (10).
Social labeling systems exist to help consumers with information, through a collaboration between legislature and consumer interests in order to ensure that popular, social-useful values will appeare to the consumers. We live today in an era where there is a big availability and wider choice of any kind of product. The market is saturated and full because of the globalization and the increase of international trade. In this modern market, the commercial surplus comes from information. It is through information that consumers are pushed to buy a determined product instead of another. Besides this commercial value, the consumers have a right to know, which means shall have the right to obtain actual information of services and products thay want to purchase. (11)
The main instrument to ensure the respect of this right is a simple label. Thus, one main argument for labeling schemes is the right of the consumers to know what is behind the production of a commodity.
The problem is that the labels are often seen as an instrument potentially used to hide protectionsim, or an instrument, whose requirments restrict de facto the access to the market or concern local interests, which do not have the same weight in other countries. (12)
The principal obstacles to the usage of social labels come from who represents the voice of the WTO system and who suggests how to interpret its Agreements, Panels and the Appelate Body. I will underline in the next pages how these trade bodies, with their unclear interpretation of the main Agreement (13) related to labels, are undercutting the potential inherent in those social labels for the promotion of priceless values.
Moreover, these measures are, certainly, much less restrictive than other traditional legislative or administrative instruments, that a government can adopt to achieve the same social objectives, such as import bans.
In order to demonstrate how a government can apply these labeling schemes to minimize and manage the negative effect of the globalization and the global economy on the environment, the human, animal and plant life, I will examine the definition, the basic features and the types of social labels, trying to identify, among the different types of social label, the one that can be used as promotion of social objectives, without being trade-restrictive.
Then, the second part will be about the legal analysis and qualification of the social label under the Agreement on Technical Barriers to Trade, known as the TBT Agreement and under some provisions of the GATT, which can be, more easly, objects of complaints concerning the labels. In particular, the analysis of the provisions of the GATT will be done in an indirect manner: through the explenation of similiarities with these provisions that one may identify in the provisions of the TBT Agreement.
The last part is about an explanation to an important WTO case, - Measures Concerning the Importation, Marketing and Sale of Tuna and Tuna Products (14= , that involved a famous social label, the "dolphin-safe" label, promoted by the United States to decrease the death rate of dolphins, where the Panel and the Appelate Body analyzed the most important provisions of the TBT agreement, just a few times scrutinized under the Dispute Settlement Understanding of the GATT. (15)
The examination of the WTO jurisprudence related to this case is direct to underline the negative role that Panel and the Appelate Body are playing in relation to the social capability of social labels. Through their distort interpretation of the main provisions of the TBT Agreement, they are striking down the social labels and the willing of legislators to create them.
2) BACKGROUND TO SOCIAL LABELS
A) What is a social label? How to use it for the promotion of social values?
A label is an instrument to comunicate information to consumers, through a physical label, that contains symbol, as logos and trademarks or text. (16) The information provided is basic, such as the content and physical characteristics of the product (volume or weight), their ingredients, quality, expiration dates, the process or the method of production, the trademark or the name of the producer or the social condition. (17) This is the definition of label in general. When we talk about social label, we mean something different and related to specified information that are communicated to consumers. Social labeling informes the consumers about the fact that the products are made in a socially responsible manner. Thus, they inform consumers about the social conditions of production of services and items they are going to purchase. (18)
In this sense, social labels are particularly important because they can inform the consumers about the process and production methods (PPM) of products, when they are not reflected in the physical characteristics of them or about the fact that products are produced under equitable working conditions.
Another form of social label is the "eco-label", which is "the practice of marking products with a distinctive label so that consumers know that their manufacture conforms to recognized environmental standards. " (19)
In particular, through the reference to the process or the method of production or the characteristics of the product, consumers can be informed about the safeguard of animals during the process of production, or the impact of the production over the workers or the local community (20). In this way, another element will be added in the framework of factors considered in the choice of what to buy and the consumer will be led to select for the product that has been produced in a environmentally responsible manner. (21) Inevitably, the social label will acquire a commercial value that should push the producer and the enterprises to adhere to the requirements that allow the use of the label. It is in this sense that, it is possible to consider the social labellings as instrument of promotion and achievment of social and human values, through the choice of the consumers and the spontaneous elimination of producers that pay no attention on these social aims.
B) Potential limitative effects
However, the social label is, legally, definable as a non-tariff measure (NTBs), which can take the form a product regulations or standards, as we will see in detail below. The limitative effects that this kind of measures can have and had on the international flow of goods (22) are well known.
The standards or the product regulations can be designed in a manner as to advantage like domestic products to the detriment of imported products, not to achieve legitimate aims but for the protectIOn of local companies. For instance, under the pretext of environment protection, a WTO Member may require all imported automobiles to comply with a specific emission standard, while it requires no restriction on domestic autos (23). In this case we can verify a pure violation of the national treatment obligation, established in Article III of GATT.
Standards and regulations may also be enacted not to achieve protectionist purposes but anyway in a unreasonable and burdensome way. Indeed, concerns related to labeling schemes raised by the criteria used to select the recipients. Most labels are based on processing and production method (PPMs) rather than the product's characteristics. Thus foreign producers are forced to change their method in order to gain the label, facing large costs (24). Moreover these criteria usually reflect domestic environmental conditions and issues, raising challeges before the DSU system, because, as the AB said, "discrimination results not only when countries in which the same conditions prevail are differently treated, but also when the application of the measure at issue does not allow for any inquiry into the appropriateness of the regulatory program for the conditions prevailing in those exporting countries." (25) Furthermore one might think of a country who imports products in more places, each of which requires different processing or production methods for the same product.
Hence, this labeling scheme, althought awarded to achieve social goals, can constitute de facto barriers to trade. These potential restrictive impacts have worried the WTO Members, pushing them to regulate their presence in the scenario of the international trade, through the development of a combination of legal tools, encompassed before in the Standards Code, outcome of the Tokyo Round and then in the TBT Agreement, result of the Uruguay Round (26).
C) Mandatory social labeling schemes
From the point of view of the subject that promotes the social label, we can distinguish differnt types of social label. Starting from those that are awarded by the governments, we have mandatory governmental social labels and voluntary governmental social labels (27).
Prior to describing them, it seems appropriate to underline the importance of the promotion of these instruments by the governments. These measures constitute instrument for the develompment of values which fall within the sphere of public interest, whose defense is up to the government. Moreover, scholarly literature claims that the presence of the government into the promotion of social labels can attribute more credibility, stability and financing to labels. Talking about the first kind, it is a mandate label-related program that imposes all the producers of a specified product to provide basic information about the products on the label (28) in order to obtain the access to the market. We can, for example, think about the european regulation (29) that, in the 2004, was made mandatory in the European Union of the labeling of foods containing genetically modified oranisms (GMOs) (30) or about the Nutrition Labeling and Education Act of 1990 (31) that stated that "food intend for human consumption and... offered for sale" must include a nutrition label with specified nutrients and other information. In 1990, the United States' Congress enacted the U.S. Clean Air Act Amendments, which required a label for products made with certain chemical substances. (32)
D) Voluntary social labeling schemes
In the voluntary governmental labeling scheme, the label is always awarded by governments that, in this case, do not impose the manufacturers to adhere to a social labeling scheme. The utilization of the label is voluntary and this can stimulate companies to acquire the requirements necessary for the use of the label, considering its commercial value. In addition, this kind of label does not damage the producers that can not afford the required documentation and does not excessively restrict the flow of trade, because the products can be placed on the market, even if they are not labeled ( absence of label does not preclude the access to the market of the government-promoter). (33)
A significant example of a voluntary governmental label is that promoted by the Belgian Government. The Belgian law (34) is pursued to promote social responsible production through the provision of a label that the producers can use only if the entire life cycle of the product conforms to labor standards, established in the law itself and in the convention of the International Labour Organization.
The United States adopted this kind of social, to promote particullary, the protection of animal's life and the dolphin in the famous case related to the "dolphin-safe" tuna label (35).
Another important example is the voluntary labels, called "Blue Angel", awarded by the German government (36). It is the first label provived by a government in the world and guarantees that products or services are made in an environmentally manner. Currently, the Blue Angel label covers 11,500 products all over the world.
A voluntary social labeling scheme can be run by the private sector, such as enterprises, non-governmental organizations (NGOs), trade unions or enterprise's association (37). Like in the voluntary governmental labeling scheme, also here the compliance is not mandatory.
The most important program is Rugmark (38), promoted by the Rugmark Foundation, which consists of manufacturers, exporters, NGOs. This Foundation, through the use of a social label, certifies that the rugs are manufactured or exported child- labor free.
In the carpert industry in India, there other labeling initiatives, like Care and Fair and STEP (39), which operates in different manner and approach, but with same aim: the elimination of child labor in this production sector through the use of a voluntary label.
Talking about Care and Fair is carried out by a professional trade association of carper importers and retailers in Germany. The label in this case is not applied to single carpets but to the entire stock of the wholesaler and retailer member. Thus, the label can be showen in the sales area by the retailer or used in publicity. (40)
The association collects levies from its members, which need to renew their partecipation annualy. The levies collected are used to promote social projects. For instance, now Care and Fair is running nine schools and one hospitale in Bhadohi. (41)
STEP, was started by members of carpet trade in Switzerland and, as Care and Fair, does not label single carpets; instead it authorizes retailers to use the STEP label in their stores and for advertising. Its main objectives is always the promotion of fair conditions in the production and sale of oriental carpets. (42)
E) Confrontation between different types of social label and which one to choose
After this brief explanation of the main types of social labels, I will briefly highlight the social potentiality of both of them, with regard to their trade-limitation.
In relation to the mandatory label schemes, the lack of compliance with the requirments, which allow the use of the label, results, for foreign producers, in the exclusion from the market of the products that do not possess the requirement established in the social labeling scheme, so in import bans. As one member of the panel, established to resolve the case, Tuna- Dolphin II, said (43), a label is mandatory when the use of certain label is compulsory to access the market. Thus, the products must have that specified kind of label in order to be marked in the other country. "The requirement that compliance is mandatory.... relates to the question whether a labelling scheme is compulsory - i.e. whether products must use a label in order to be marketed - or voluntary - i.e. products may be marketed with or without the label. " (44)
In this sense, the mandatory governmental labeling schemes are not much different from other measures, like an import bans, which are blamed under the WTO system. This latter measure prohibits the importation of a specified product into the market of the country who enacted the measure in question. Even if their structure is completely different, the failure to comply with label's requirments implies exactly the content of an import ban, measure prohibited by the art. XI of the Gatt, which prohibits WTO Members to institute prohibitions or restrictions other than tariffs or other taxes on the importation or exportation of goods, which can be made effective through quotas, import or export licensing procedures, or other measures (45). Certainly, through this mandatory schemes it is possible to promote social values but this promotion happens to the detriment of those producers that can not afford the acquisition of the label's requirements. Indeed, firms that lack of resources or technical expertise in order to comply with environmental and social label's requirments, barred them from access to the labels (46). One might imagine a label's requirement which imposes a determined production methods that can cause financial and technical questions, more complicated to overcome for small producers. These kind of label schemes do not leave any place for flexibility. Thus, considering the potential difficulities to comply and the consequences of an eventual failed compliance with the requirements, this kind of measures can, although their attempt to promote social amis, weaken the flow of trade and the access to the market of products . Moreover, as the reader will discover in the next pages, the legal obligations, related to them, are more burdensome and heavy (47), because, considering their mandatory nature, they will take the legal form of a "technical regulation". In fact, for voluntary governmental or non governmental schemes the "no more trade restrictive" test is not required. The Code of Good Practice requires less stringent obligations for voluntary programs and, thus, it is more difficult to challenge a standard
In relation to the second kind of schemes, producers do not face the consequences of the lack of compliance. Indeed, the choice to pursue social aims through the label is left in the hands, firstly, of the producers and industries. These latter can freely decide whether or not to apply the label, considering the technical and economic costs to comply, the possibility to obtain a "green" image and the public opinion. Other actors of these promotion are the consumers, which, nowadays, demand increasingly for social friendly products (48). Thus, through the voluntary labels, the achievment of social objectives is ensured through the environmentally conscience of consumers and the strategies of actions of the industries, which can apply the label to obtain a competitive advantage, and not through the enforcement of the law and the legal coercion (49).
3. LEGAL ANALYSIS OF SOCIAL LABELS
A) TBT Agreement and its purposes and objects
The legality of the social labeling may be explained and analyzed in relation to two different Agreement: The General Agreement on Tariffs and Trade and the Agreement on Techinical Barriers on Trade, hereafter TBT Agreement. The first one covers international trade on goods and its purpose is to liberalize the trade and avoid harmful protectionism.
The TBT agreement is one of the outcomes of Uruguay Round and came into force with the establishing of the WTO at the beginning of 1995. This Agreement was the successor of a previous one, called the Standards Code (50) and its main goal (51) is to ensure that non-tariff measures, in particular technical regulations, standards and conformity assessment producers do not constitute unnecesseray barriers to international trade, through the prevention of protectionism. This objective is counterbalanced by another aim of this Agreement, that is to avoid unnecesseray barriers to international trade, leaving, at the same time, Members sufficient regulatory autonomy to protect some legitimate objectives, such human, plant and animal life, the national security, the environment, to provide consumers with information, and other policy interests. (52) These main objectives are expressed in fifth (53) and sixth (54) recital of the Preamble of the TBT Agreement. As the Appelate Body said (55), the fifth recital expresses the "desire" to prevent trade-restrictions, while the sixth recital speaks about the " recognition" of a regulatory discretion of WTO Members, if this discretion is exercised in a fair manner and in order to fulfil specified legitimate aims. The TBT Agreement, essentially, tries to leave a space of arbitrariness to WTO Members in deciding their domestic regulations and how to respect the WTO obligations. (56)
Now the main the objects of the TBT Agreement and its provisions are technical regulations and standards. Starting from the tecnical regulations, the Annex 1 of the Agreement is about the terms and their definitions for the purpose of the Agreement and indeed defines the technical regulation as follow : "Document which lays down product characteristics or their related processes and production methods, including the applicable administrative provisions, with which compliance is mandatory. It may also include or deal exclusively with terminology, symbols, packaging, marking or labelling requirements as they apply to a product, process or production method." (57)
Anyway it is essential to look at the jurisrudence too and particularly at the few cases, where the Panel and the Appelate Body analysed the most important provisions of the TBT. In EC- Asbestos (58), the Appelate Body established a three point test that a measure should pass in order to be qualified as a technical regulation. First the measure should lay down characteristics of the product. Secondly, the measure must apply to an identifiable product or group of products. Finally, the compliance with the measure must be mandatory. If the measure is not bounded, we will have a standard and not a technical regulation.The heart of the definition seems to be the fact that the measure refers to product characteristics. Always in Ec- Asbestos (59), the product characteristics have been interpreted by the Appelate Body as including "any objectively definable features, qualities, attributes or other distinguishing mark", such as composition, size, color, texture, hardness". Terminology, symbols, labelling requirements are examples of them, as the Appelate Body said (60).
Actually, it seems that the TBT Agreement applies also to standards and regulations related to process or production methods (PPMs). Indeed, the definition of technical regulation and of standard concerns not only the product itself and its charactersticts but also "their related processes and production methods". (61)
Focusing now the attention on the standards, they are definied in the Annex 1 as follow: "Document approved by a recognized body, that provides, for common and repeated use, rules, guidelines or characteristics for products or related processes and production methods, with which compliance is not mandatory. It may also include or deal exclusively with terminology, symbols, packaging, marking or labelling requirements as they apply to a product, process or production method." (62)
As it is clear from the definition, the only difference from the technical regulation is that the compliance with the standard is voluntary.
B) Social label as technical regulation and standard
Coming back to the main point, a social label can take the form of a technical regulation or of a standard. Thus, according to the definitions, if the label requires producers compliance we have a techinical regulation, while if the adherence with the label is not mandatory, we have a standard.
It is important to uderstand which is the legal form taken by the label, because the obligations for a WTO Member, who awards a social labels and the provisions of the TBT Agreement which are applied, are different (63). The main issue, which emerges when one analyses these provisions, is linked to the fact thar this Agreement has had a little application in the DSU system. In fact, in order to have a complaint involving the interpretation of the main provisions of the TBT Agreement, the international community had to wait the 2000, with the European Community (EC) v. Asbestos case (64). Before this date, any attempt to invoke this Agreement before a Panel or an Appelate Body did not have a positive result. It is possible to count a lot of cases where the complaining part tries to apply unsuccessfully the TBT Agreement. (65)
Thus, the main scopes, obligations, provisions of this Agreement are uncertain, considering that the TBT-related jurisprudence is limited and, in the few cases related to the TBT, has not been clear.
C) Obligations related to social label under the TBT
When a social label is a techinical regulation, the referential provision is the article 2 of the Agreement (66). The first part of the provision is a form of repetition of two fundamental principles of the GATT, because it recalls the most favorite nation principle and the national treatment principle (67). Indeed, it is stated that members shall accord to products originating in the territory of any other Member a treatment that is "no less favourable than that accorded to like products of national origin and to like products originating in any other country" (68). Exactly the same words are used in the Annex 3 of the TBT (69), titled "Code of good practice for the preparation, adoption and application of standards", which contanis the substantive provisions concerning products'standard.
As it is evident, the TBT Agreement does not add something new but merely tells again what the GATT already expresses in the article I and III.
It is possible to say the same in relation to the paragraph 2 of the article 2 of the TBT Agreement, which contans other obligations related to product regulations. This provision prohibits the Members to apply, prepare and adopt technical regulations that constitute unnecessary obstancles to international trade. Identical provision is contanied in the Code of Good Practice (70). Only in relation to regulations, it is established that measures can not be more trade restrictive then necessary to fulfill legitimate objectives, some of which are listed in the same provision, such as protection of human, animal and plant life or the environment. This further requirement is not requested for standards (71).
Anyway, coming back to article 2.2 and the similiarities with the GATT Agreement, the purpose of this provision is to realize a balance between the need of allowing States to have a regulatory discretion in order to achieve policy interests and the need of avoiding that this discretion is too broad and become a mean of trade-restrictiveness.
This rule seems to remember a different one of the GATT, the article XX. The latter provision, in fact, allows the WTO Members to adopt measures conflicting with any provision of the GATT Agreement to pursue legitimate objectives, listed strictly in the article itself, unless these measures constitute means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail, or a disguised restriction on international trade. (72)
The compromise that this provision realized is similar to the one achieved by the provision of the TBT in question.This latter compromise is the same reflected in the preamble of the TBT Agreement too, in the fifth and sixth recital and in relation to the preamble, the Appelate Body too, in a particular case,said this words: "The balance set out in the preamble of the TBT Agreement between, on the one hand, the desire to avoid creating unnecessary obstacles to international trade and, on the other hand, the recognition of Members' right to regulate, is not, in principle, different from the balance set out in the GATT 1994, where obligations such as national treatment in Article III are qualified by the general exceptions provision of Article XX. " (73)
Thus, even if the TBT Agreement does not have an equivalent to Article XX, this preamble's interpretation justifies discrimination "necessary to fulfill certain legitimate policy objectives", just like discriminations and other provisions'violations are allowed under the article XX of the GATT.
But in relation to the general exception, the burden of proof, to demonstrate that the measure is justified as being within one of the exceptions, rests upon the party who invokes the exception, usually the defendant. Instead, in relation to thet art 2.2, the burden of proof rests upon the complaining country, which has to demonstrate that, in violation to art. 2.2, the measure creates unnecessary obstacles to trade and that it is more trade rescrtive of neessary to achieve the the legimate objective, through the individuation of other measures less trade-rescrictive, which have an equivalent contribution to the objective and are available (74) or arguing that the obejctive is not legitimate. (75)
As basis for standards and regulations, WTO Member shall use international standards (76), always if they constitute effective and appropriate instruments for the achievment of legitimate objectives. Moreover, if the technical regulation relies on international standard, there is a presumption that the measure doen not constitute an unnecessary obstacle to international trade (77). Moreover, with a view to harmonizing standards and regulations on as wide a basis as possible, the standardizing body and Members shall partecipate in the preparation by relevant international standardizing bodies of international standards regarding subject matter for which it either has adopted, or expects to adopt, standards or technial regulations. (78)
An argument against the development of labels is that their access could be uncertain and misterious. For this reasons, the TBT Agreement requires trasparency through a system of prior notifications in relation to technical regulations and standards. (79).
4. WTO jurisprudence in relation to technical regulations and standards
A) US- TUNA II- Factual background
In 2008, a dispute between Mexico and Unitated States began in relation to the famous labeling program "dolphin-safe", designed for tuna fished in a dolphin-safe manner. In Mexico, particularly in the Eastern Tropical Pacific(ETP), tuna swim below and with dolphins. Thus, fishing vassels, in order to catch tuna, try to locate dolphin on the surface of the ocean. Once located, they used a specified method based on the so-called "purse seine nets", which can cause the death ot the injury of lots of these mammals. Hence, to reduce the damage provoked in the ETP, the government of the Unitated States enacted the Dolphin Protection Consumer Information Act (DPCI Act) (80), which enstablished this social label. In addition, this social labeling scheme were regulated by other legal measures.81 This labeling scheme provides stringent requirements in order to allow producer, importer, exporter, distributor, or seller of tuna products that are exported from or offered for sale in the US to include on the label the word "dolphin-safe" or any other term or symbol that suggests that the tuna contained in the product were harvested using a method of fishing that is not harmful to dolphins if the product contains tuna harvested. (82) These requirements changed according to the place in which tuna are fished (inside or outside the ETP), the fishing-method used and the level of mortality or injury of dolphins. In particular, the United States prohibited the application of the label in the US market on tuna fished by a method involving encircling or setting upon dolphins. (83)
It is important to take in mind that, previously, a multilateral agreement, called "the Agreement on the International Dolphin Conservation Program" (AIDCP) to which both Mexico and United States are parties, was conduded in 1999 .84Under this Agreement, tuna caught with the purse seine nets technique can be labelled as dolphin-safe if there is a certification by an indipendent observer that no dolphins were killed or injured. While, under the American law, most Mexican vessels cannot get the "dolphin-safe" label if they use the latter fishing method.
In 2009, a Panel was established upon request of Mexico in relation to the conformity of these measures related the label with the TBT Agreement. Specifically Mexico complained that these measures constituted "technical regulation" and were not in accordance with art. 2.1, 2.2 and 2.4 of the TBT Agreement and art I.1 and I.4 of the GATT. As said before, the burden of proof relies upon the complaing party. Thus, Mexico, in order to demonstrate the violation of art 2.2 of the TBT, introduced an alternative measure, which was less trade restrictive than the US instrument, made an equivalent contribution to the relevant objective and which was available.
The Panel did non examine the measure under the GATT but only the accordance of the labeling program with the TBT Agreement.
B) Not-so-mandatory label
The only point on which Panel and Appelate Body agreed is the nature of the measure as a technical regulation. The surprising thing of this case is the reasoning done by these two trade bodies in order to sustain the regulatory nature of the measures at issue.
In order to apply the art. 2 of the TBT Agreement, the complaining part claimed that the measures constituted a technical regulation and created unnecessary obstacles to trade, considering that the US dolphin-safe provisions have "the effect of excluding Mexican tuna products from the major distribution channels in the U.S. market and creating new barriers to trade".85 Moreover, they affirmed that "the application of a dolphin-safe label to tuna products has significant commercial value in the United States market. (86)"
Whilst the United States argued for the nature of the "dolphin-safe" label as voluntary, claiming that " compliance with a labelling requirement is mandatory within the meaning of Annex 1.1 only if there is a requirement to use a particular label in order to place a product for sale on the market." (87) "A labelling scheme would be mandatory if the labelling scheme - or some other government action - prohibited products from being sold, imported, distributed or otherwise marketed that were not labeled in that way" (88). The Panel, did not accept this latter argument, finding the label mandatory and so a technical regulation. In applying the three steps-test, the Panel argued, in relation to the last step (89), that "the regulation is mandatory", because "even if the labelling scheme were not to be considered a priori mandatory, it is de facto mandatory because the market conditions in the United States are such that it is impossible to effectively market and sell tuna products without a dolphin-safe designation. " (90)
In addition, the Panel decided in favour to the mandatory label, claiming that there is a basic distinction between a "requirement", which refers to the conditions to be fulfilled in order to comply with a document, and the notion of "mandatory" requirement as a condition made compulsory by law.' (91). Thus, the decision of mandatory or valuntary nature "must be based on considerations other than, or beyond, the fact that such document establishes criteria for the use of a certain label.'" Moreover the Panel affirms that "In the context of a labelling requirement, therefore, the question we must consider is not only whether the document lays down certain conditions for the use of a label, or prescribes a certain content for a given label, but whether the document at issue regulates in a binding fashion these conditions or conten."(92) The measure at issure, in the Panel's opinion, prescribes "in a negative form ... that no tuna product may be labelled dolphin-safe or otherwise refer to dolphins if it does not meet the conditions set out in the measures, and thus impose a prohibition on the offering for sale in the United States of tuna products bearing a label referring to dolphins and not meeting the requirements that they set out. " (93).
The Appelate Body did not reverse the finding of the Panel, related to the nature of the measures and, just like the Panel, claimed that the label was mandatory, considering that the text of Annex 1.1 does not use the word "markert" and that "the US measure sets out a single and legally mandated definition of a "dolphin-safe" tuna product and disallows the use of other labels on tuna products that do not satisfy this definition. As a consequence, the USmeasure covers the entire field of what "dolphin-safe" means in relation to tuna products. " (94) . For that reasons, they reached the same outcome of the Panel.
C) Other legal issues in the case
In relation to the art. 2.1 and 2.2, the Panel found that the measures are consistent with the art. 2.1 because they did not modify the conditions of competition to the detriment of imported Mexican tuna products in favour of like tuna products from the US and other countries . But the Panel decided that there was violation of art. 2.2 of the TBT, finding the measure more trade-restrictive than necessary to contribute to protecting dolphins. "The measures did not address observed mortality, and any resulting adverse effects on dolphin populations, for tuna not caught by setting on dolphins or high seas driftnet fishing outside the ETP do not address observed mortality, and any resulting adverse effects on dolphin populations, for tuna not caught by setting on dolphins or high seas driftnet fishing outside the ETP. " (95) But considering that the choice of the level of protection of the legitimate objective to be achieve is left in the hands of the State who enacts the measure, the Panel did not make any determination of the appropriate level of protection to achieve in relation to the objectives reltaed to the information of consumers and the protection of dolphins.
Instead, the Appelate Body found a violation of the art 2.1 of the TBT Agreement, but not a violation of the subsequent provision, believing that the alternative measure, identified by Mexico, would contribute to both the objectives proposed by the Unitated States to a lesser dregree that the measure in question because it would allow more tuna harvesterd in conditions that adversely affect dolphins to be labelled "dolphin safe". (96)
Thanks to these rulings, Mexico won initially this legal battle, which forced the United States to modify its law and regulations about dolphin's label two times, in 2013 and in 2016.(97) Mexico obtained the authorization from the DSB to suspend the application of certain tariff concessions and related obligations to the United States in the amount of US $ 163.23 million on an annual basis
if the WTO ruled that U.S. labeling rules still didn't comply with WTO rules. Mexico had planned to impose duties on high-fructose corn syrup imports but the United States sought a review of the ruling and at the end the Panel said that the U.S. labeling program was in compliance with the WTO.
D) Review of the interpretation of the Panel and the Appelate Body
Considering the interpretation that the two trade bodies gave to these main provision, first of all, the fact that, in relation to the art. 2, both the Panel and the AB reached a different result with regard to the first paragraph and the second paragraph, is not much logical and reasonable. In the US-COOL case (98), the AB claimed that the word " for this purpose", used in the provision in analysis linking the two paragraphs, suggests that the second sentence (about trade-restrictiveness) informs the scope and meaning of the obligation contained in the first sentence (about unnecessary obstacles to trade)."( 99) In my opinion, this interpretation should lead to a coherent conclusion related to both paragraphs, when they are both under analysis. The second paragraph constitutes an umbrella, which encompasses the first sentence too and which should guide in the interpretation of this latter.
How is it possible to sustain that a measure is more trade-restrictive than onther and, at the same time, deny that the measure constitute an unnecessary obstacle to trade? The simple fact that the complaining party is able to introduce as evidence and shows that the defendant could have used an alternative measure, it is sufficient to held that the measure enacted is a barrier to trade.
Beside this meaningless interpretation, the most important thing to take into account is the arbitral transformation of a clear standard into a technical regulation (100). In the US-TUNA II case we had an obvious voluntary label, in the sense that the requirement only applies if someone decides on his own initiative to use the label, tunerd into a mandatory one. This change was based on the fact that " they (United States) do prescribe and impose the conditions under which a product may be labelled dolphin-safe" (101). One might answer that it would been meaningless to have a label which everybody can use without the previous and necessary compliance with any requirements. It is obvious that a legislator, in creating a voluntary labeling scheme, must impose some requirements to meet and a legal basis, because otherwise all that there is behind tha labling program would not make sense (.102) To give a sense to the term "labelling requirement" , used both in Annex 1.1. and 1.2, the mandatory or voluntary nature cannot relate to the obligation to meet compulsorily certain requirements to use the label.
The main protagonists of the DSU system interpreted the word "mandatory", used in the definition of the technical regulation (103), in a broad manner, so as to encompass voluntary label too. Thus a pure voluntary label (standard) was turned artificially into a mandatory one (technical regulation). This transformation, is probably caused by the fact that the consideration of the social label as a standard would not have brought to its analysis under the article 2.2 of the TBT Agreement. Indeed, the standars are subject to legal burdens less heavy and stringent, considering that the content of main and more troubled provision, which is the art. 2.2 of the TBT Agreement, does not have any equivalent in the Code of Good practice, related to the standards.
The combination of making a voluntary label into a "technical regulation" and the consequent application of more budernsome provisions and requirements (like the trade restrictiveness test) show how the trade bodies give too much attention to trade concerns to the detriment to other values, importan as well. It seems clearly that they do not make a good balance between trade field and social field, sectors that should collaborate and enforce each other.
E) Looking to the future
It is clear from the case analysis that all these agreements part of the WTO system are object of interpretation from the trade bodies and are potentially object of abuse and distortions. In order to avoid the creation of a "parallel" and artificial provision, outcome of the judicial interpretation, there is a potential solution.
From the WTO system's point of view, a better structure and clearer provisions would be desirable and beneficial. Before a provision well designed and written, the space for arbitrary interpretations from the Panel and the Appelate Body would be reduced. Indeed, looking at the provisions related to the definition of standard and technical regulation, one might think that there is inevitably a need for a clarification. Effectively, from the lecture of the definition, it is not evident what the legislator means for mandatory or voluntary compliance. Commonly, where the law is not clear, the interpretation of the Court takes over and tries to fill the legislative empity. Obviously, a basic rule of any interpretation is the individuation of the main interest which drives the interpretation itself. This interest is usually the outcome of a balacing and weighing of the interests on the table . Probably and as the jurisprudence confirms, before a trade body, the interests which wins is always the trade-related one. The Panel and the Appelate Body let themself being transported from its trade values and do not attribute the right importance to the other interests,which just few times, prevail. Hence, in order to avoid this unbalanced interpretation and give more space to social interests, it should be the the trade legislator not to leave any room to the judicial invasion and intrusion through a clear formulation of its laws and provisions.
From the analysis carried out in these pages, it appears in a evident manner the potentiality inherent in the social labels as instrument of promotion of social values, such as the protection of the environment, animal's and plant's life and human life. Through a collaboration between the green willing and conscience of consumers, the decisions of producer and industries and the legislator, these schemes, object of my paper, can give to priceless aims the value and the respect that they deserve. Through their development and promotion, it is conceivable a kind of collaboration between trade area and environmental and social area. These areas can live in parallel, without weaken each other and this cooperation can be expressed in the social labeling schemes, instrument with a limitated impact on trade.
The problem which, nowaday, seems to stand out, is the role played by the jurisprudence of the DSU system with regard to this potential relationship. It seems that the trade bodies attack these regulatory measures using the rules of the WTO system. Through their narrow and restricted interpretation of the TBT Agreement, all the potentialities encompassed in these measures came to end. When the Panel or the Appelate Body face a measure of this kind, they look into it with trade filters and do not give the right importance to other essential values. In each case involved social or environmental measures enacted by a country, they have seen, behind them, an attempt to pursue protectionist aims. Moreover, they have never evaluated carefully the environmental or social measures. For instance, although the DSU system confers to the Panel and Appellate Body the power to call experts in their help, both the Panel and Appellate Body, in the US-Tuna II case, decided to give up that option.This thesis is supported by resolutions of other disputes, where the DSU system had attacked other environmental measures104 and by the US-TUNA case.
In conclusion, there is the need to stop this attempt of the Panel and the Appelate Body to create a standard for this voluntary label, which will require States to provide an infinite number of evidences in order to mantain the measure. This attempt, in fact, makes much less likely the legislators to create labeling shemes and this is a huge loss, considering their potential usage to encourage social objectives. One potential remedy is the creation of clearer and well formulated trade provisions. It is not enough to give apparently relevance to social values in the WTO's Agreements if this relevance is not supported by a clear and correct formulation of provisions. It is clear how much these uncertainty related to the drafting of rules can cost and how the legislator's intention can be overcome by the judicial interpretation.
1 For an analysis about this relationship: 20TH ANNUAL SYMPOSIUM: LEX & THE LORAX: ENFORCING ENVIRONMENTAL NORMS UNDER INERNATIONAL LAW:The Problem of Enforcing Environmental Norms in the WTO and What To Do About It, 26 Hastings Int'l & Comp. L. Rev. 321
2 Internationa Trade Law, Pauwelyn, Guzman, Hillman, 323.
3 General Agreement on Tariffs and Trade, Oct. 30, 1947, 61 Stat. A-11, 55 U.N.T.S. 194, Art 1, which states: " With respect to customs duties and charges of any kind imposed on or in connection with importation or exportation or imposed on the international transfer of payments for imports or exports, and with respect to the method of levying such duties and charges, and with respect to all rules and formalities in connection with importation and exportation, with respect to all matters referred to in paragraphs 2 and 4 of Article III,* any advantage, favour, privilege or immunity granted by any contracting party to any product originating in or destined for any other country shall be accorded immediately and unconditionally to the like product originating in or destined for the territories of all other contracting parties."
4 Internationa Trade Law, Pauwelyn, Guzman, Hillman, 253.
5 General Agreement on Tariffs and Trade, Oct. 30, 1947, 61 Stat. A-11, 55 U.N.T.S. 194, art 3, para 1, which states: "The contracting parties recognize that internal taxes and other internal charges, and laws, regulations and requirements affecting the internal sale, offering for sale, purchase, transportation, distribution or use of products, and internal quantitative regulations requiring the mixture, processing or use of products in specified amounts or proportions, should not be applied to imported or domestic products so as to afford protection to domestic production."
6 General Agreement on Tariffs and Trade, Oct. 30, 1947, 61 Stat. A-11, 55 U.N.T.S. 194, art. 20, which states: Subject to the requirement that such measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail, or a disguised restriction on international trade, nothing in this Agreement shall be construed to prevent the adoption or enforcement by any contracting party of measures: (a) necessary to protect public morals; (b) necessary to protect human, animal or plant life or health; (c) relating to the importations or exportations of gold or silver; (d) necessary to secure compliance with laws or regulations which are not inconsistent with the provisions of this Agreement, including those 38 ARTICLES XX AND XXI relating to customs enforcement, the enforcement of monopolies operated under paragraph 4 of Article II and Article XVII, the protection of patents, trade marks and copyrights, and the prevention of deceptive practices; (e) relating to the products of prison labour; (f) imposed for the protection of national treasures of artistic, historic or archaeological value; (g) relating to the conservation of exhaustible natural resources if such measures are made effective in conjunction with restrictions on domestic production or consumption; (h) undertaken in pursuance of obligations under any intergovernmental commodity agreement which conforms to criteria submitted to the contracting parties and not disapproved by them or which is itself so submitted and not so disapproved; (i) involving restrictions on exports of domestic materials necessary to ensure essential quantities of such materials to a domestic processing industry during periods when the domestic price of such materials is held below the world price as part of a governmental stabilization plan; Provided that such restrictions shall not operate to increase the exports of or the protection afforded to such domestic industry, and shall not depart from the provisions of this Agreement relating to non-discrimination; (j) essential to the acquisition or distribution of products in general or local short supply; Provided that any such measures shall be consistent with the principle that all contracting parties are entitled to an equitable share of the international supply of such products, and that any such measures, which are inconsistent with the other provisions of the Agreement shall be discontinued as soon as the conditions giving rise to them have ceased to exist. The CONTRACTING PARTIES shall review the need for this sub-paragraph not later than 30 June 1960.
8Appellate Body Report, United States-Import Prohibition of Certain Shrimp and Shrimp Products, , WT/DS58/AB/R, where the Appelate Body upheld that the imports ban U.S.' import ban on shrimp from countries not certified to use methods that decrease turtle bycatch and mortality was not covered under the art. XX because constitutes a "unjustifiably" discriminatory, considering its intended and actual coercive effect on the specific policy decisions made by foreign governments that were Members of the WTO. The measure also constituted "arbitrary" discrimination because of the rigidity and inflexibility in its application;
9 Korea - Measures Affecting Imports of Fresh, Chilled and Frozen Beef, WT/DS161/AB/Rwhere the Appellate Body upheld that measure was not justified as necessary to secure compliance with Korea's Unfair Competition Act because the dual retail system was covered by Art. XX(d). "Necessary" requires the weighing and balancing of factors such as the contribution made by the measure to the enforcement of the law or regulation at issue, the relative importance of the common interests or values protected and the impact of the law on trade.
11 Xiao Baoxing; Dong Ping, The Research and Practice on Establishing the Protection System for Consumers' Rights and Interests in Express Delivery Service Contracts, 5 China Legal Sci. 64, 88 (2017)
12 Hajin Kim, An Argument for WTO Oversight of Ecolabels, 33 Stan. Envtl. L. J. 421, 456 (2014)
13 Agreement on Technical Barriers to Trade, 1868 U.N.T.S 120, (hereafter TBT Agreement).
14 United States - Measures Concerning the Importation, Marketing and Sale of Tuna and Tuna Products - Report of the Panel (WT/DS381/R ) and Report of the AB (WT/DS406/AB/R).
15 General Agreement on Tariffs and Trade, Oct. 30, 1947, 61 Stat. A-11, 55 U.N.T.S. 194, art 23.
16 For the definition of label:" Social Labelling to Combat Child Labour: some considerations", J. Hilowitz, International Labour Review, 136 (2) (1997);
Juanita Elias, "International Labour Standards, Codes of Conduct and Gender Issues: A Review of Recent Debates and Controversies", 3 Non-St. Actors & Int'l L. 283, 302 (2003).
Manoj Joshi, "Are Eco-Labels Consistent with World Trade Organization Agreements? ", 38(1) J. OF WORLD TRADE, 69, 73 (2004).
18 Janet Hilowitz, Social Labelling to Combat Child Labour: Some Considerations, 136 Int'l Lab. Rev. 215, 232 (1997)
19 Eco-labelling Definition, OXFORD DICTIONARIES, https://tinyurl.com/lol67dm (last visited Apr. 23, 2014).
20 Id. supra note 14.
21Karbowski, Jessica M., "Grocery Store Activism: A WTO Compliant Means to Incentivize Social Responsibility" (2008). Student Scholarship Papers. Paper 76.
22 See Leith E. Maskus and John S. Wilson (eds.), Quantifying the Impact of Technical Barriers to Trade: Can It Be Done? (The University of Michigan Press, Ann Arbor 2001) .
23 Michael Ming Du, Domestic Regulatory Autonomy under the TBT Agreement: From Non-Discrimination to Harmonization, 6 Chinese J. Int'l L. 269, 306 (2007)
24 Atsuko Okubo, Environmental Labeling Programs and the GATT/WTO Regime, 11 Geo. Int'l Envtl. L. Rev. 599, 646 (1999)
25 UNITED STATES - IMPORT PROHIBITION OF CERTAIN SHRIMP AND SHRIMP PRODUCTS (WT/DS58/AB/R), para 165.
26 Michael Ming Du, Domestic Regulatory Autonomy under the TBT Agreement: From Non-Discrimination to Harmonization, 6 Chinese J. Int'l L. 269, 306 (2007)
27 Detsomboonrut, Noppadon, 'Social Labelling under WTO Law' (April 24, 2013). Available at SSRN: https://ssrn.com/abstract=2255968 or https://dx.doi.org/10.2139/ssrn.2255968
29 Regulation (EC) No 1830/2003 of the European Parliament and of the Council of 22 September 2003.
30Steve Keane, Can a Consumer's Right to Know Survive the WTO: The Case of Food Labeling, 16 Transnat'l L. & Contemp. Probs. 291, 332 (2006)
31 Nutrition Labeling and Education Act of 1990,(NLEA) (Public Law 101-535)
32 Clean Air Act, Title IV § 611 (d)(1), 42 U.S.C.
33 Karbowski, Jessica M., "Grocery Store Activism: A WTO Compliant Means to Incentivize Social Responsibility" (2008). Student Scholarship Papers. Paper 76.
34 The draft of the law passed in the Parlament in 2002 but it is still waiting for promulgation.
35 Dolphin Protection Consumer Information Act, Pub. L. 101-627, title IX,Sec 901, Nov. 28, 1990, 104 Stat. 4465 ( 16 U.S.C. 1385).
37 Detsomboonrut, supra note 12.
39 Alakh N. Sharma. "Impact of Social Labelling on Child Labour in Carpet Industry." Economic and Political Weekly 37, no. 52 (2002): 5196-204. https://www.jstor.org/stable/4413016
41 Janet Hilowitz, Social Labelling to Combat Child Labour: Some Considerations, 136 Int'l Lab. Rev. 215, 232 (1997)
42 Id. supra note 34.
43 United States - Measures Concerning the Importation, Marketing and Sale of Tuna and Tuna Products - Report of the Panel (WT/DS381/R), para 7.151;
45 Article XI,"General Elimination of Quantitative Restrictions" of the GATT, which states:"No prohibitions or restrictions other than duties, taxes or other charges, whether made effective through quotas, import or export licences or other measures, shall be instituted or maintained by any contracting party on the importation of any product of the territory of any other contracting party or on the exportation or sale for export of any product destined for the territory of any other contracting party."
46 Marcy Nicks Moody, Warning: May Cause Warming Potential Trade Challenges to Private Environmental Labels, 65 Vand. L. Rev. 1401, 1446 (2012)
47 Art 2.2 of the TBT Agreement, exclusively in relation to technical regulation, states: "technical regulations shall not be more trade-restrictive than necessary to fulfil a legitimate objective, taking account of the risks non-fulfilment would create" . There is no equivalent provision in the Code of Good practice, related to standards.
48 Renate Gertz, Eco-labeling - A Case for Deregulation, 4 Law, Prob. & Risk 127, 142 (2005)
51 Preamble of Agreement on Technical Barriers to Trade, TBT, 1868 U.N.T.S. 120, fifth recital.
52United Nations Conference on Trade and Development, 3.10 Technical barriers to Trade https://unctad.org/en/Docs/edmmisc232add22_en.pdf;
53 Preamble of Agreement on Technical Barriers to Trade, TBT, 1868 U.N.T.S. 120, fifth recital which statses: "Desiring however to ensure that technical regulations and standards, including packaging, marking and labelling requirements, and procedures for assessment of conformity with technical regulations and standards do not create unnecessary obstacles to international trade".
54 Preamble of Agreement on Technical Barriers to Trade, TBT, 1868 U.N.T.S. 120, sixth recital which statses:" Recognizing that no country should be prevented from taking measures necessary to ensure the quality of its exports, or for the protection of human, animal or plant life or health, of the environment, or for the prevention of deceptive practices, at the levels it considers appropriate, subject to the requirement that they are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail or a disguised restriction on international trade, and are otherwise in accordance with the provisions of this Agreement".
55 UNITED STATES - MEASURES AFFECTING THE PRODUCTION AND SALE OF CLOVE CIGARETTES, WT/DS406/AB/R, paras 92-95.
56 Michael Ming Du, Domestic Regulatory Autonomy under the TBT Agreement: From Non-Discrimination to Harmonization, 6 Chinese J. Int'l L. 269, 306 (2007)
57 Annex 1.1 of the TBT Agreement.
58 European Communities - Measures Affecting Asbestos-Containing Products, WT/DS135/AB/R , adopted 5 April 2001, paras. 66-70.
59 Id, para 67.
61 Reading the definitions of standard and technical regulation of Annex 1 of the TBt agreement, it seems that standard and regulation based on PPM are covereb by the TBT Agreement because this inludes includes not only "documents that lay down product characteristics" but also "their related processes and production methods... ". Anyway there is a distinction between PPM that are reflected on the physical characteristics of the product and PPM, which are not visible from products' characteristics, generally called non-product related PPM. The majority of the international community believes that only standards and technical regulations based on the first type of PPM are covered by the TBT Agreement, because of the words "their related", used for the processes and production methods with regard to product characteristics. Others, instead, think that measures, which address non-product related PPM should not be treated differently from measures related to product-related PPM.
62 Annex 1.2 of the TBT Agreement.
63 Detsomboonrut, supra note 12, pag 29.
64 EC v. Measures Affecting the Prohibition of Asbestos and Asbestos Products.
65 Panel Report on United States Standards for Reformulated and Conventional Gasoline, WT/DS2/R, adopted on 20 March 1996, para. 6.43; Panel Report on European Communities-Trade Description of Scallops, WT/DS7/R (Canada), WT/DS12/ R (Chile), WT/DS14/R (Peru); Panel Report, EC-Measures Concerning Meat and Meat Products, WT/DS26/R, para. 8, 29; Panel Report, EC v. Measures Affecting Butter Products, WT/DS72/R;
66 id, supra note 32.
67 Id, supra note 3.
68 Art 2.1 of TBT Agreement, which states: "Members shall ensure that in respect of technical regulations, products imported from the territory of any Member shall be accorded treatment no less favourable than that accorded to like products of national origin and to like products originating in any other country.
69 Annex 3.D of TBT Agreement, which states: "In respect of standards, the standardizing body shall accord treatment to products originating in the territory of any other Member of the WTO no less favourable than that accorded to like products of national origin and to like products originating in any other country."
70 Annex 3.E of TBT Agreement, which states:" The standardizing body shall ensure that standards are not prepared, adopted or applied with a view to, or with the effect of, creating unnecessary obstacles to international trade."
71 Art 2.2 of the TBT Agreement.
72 Art XX of the GATT, which states, in the chapeau: "Subject to the requirement that such measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail, or a disguised restriction on international trade, nothing in this Agreement shall be construed to prevent the adoption or enforcement by any contracting party of measures".
73 UNITED STATES - MEASURES AFFECTING THE PRODUCTION AND SALE OF CLOVE CIGARETTES, WT/DS406/AB/R, para 96.
74 UNITED STATES - MEASURES CONCERNING THE IMPORTATION, MARKETING AND SALE OF TUNA AND TUNA PRODUCTS (WT/DS381/AB/R), adopted by the AB the 16 May 2012, para 323.
75 Hajin Kim, An Argument for WTO Oversight of Ecolabels, 33 Stan. Envtl. L. J. 421, 456 (2014)
76 TBT Agreement,supra note 9, art. 2.4 (for regulations); Annex 3.F (for standards).
77 Id., art. 2.5.
78 TBT Agreement, supra note 9, art. 2.6 (for regulations); Annex 3.G (for standards).
79 Id. art. 2.9 (for regulations); Annex 3.L (for standards).
80 Title 16 s. 1385 United States Code (USC).
81 The Code of Federal Regulations, Title 50, Section 216.91 ("Dolphin-safe labeling standards") and Section 216.92 ("Dolphin-safe requirements for tuna harvested in the ETP [Eastern Tropical Pacific Ocean] by large purse seine ves- sels") and the ruling in Earth Island Institute v. Hogarth, 494 F.3d 757 (9th Cir. 2007).
82 Title 16 s. 1385 Dolphin Protection Consumer Information Act, USC, 1385(d)(1)-(3).
83Alessandra Arcuri, Back to the Future: US-Tuna II and the New Environment-Trade Debate, 3 Eur. J. Risk Reg. 177, 189 (2012); Robert Howse; Philip I. Levy, The TBT Panels: US-Cloves, US-Tuna, US-COOL , 12 World Trade Rev. 327, 376 (2013).
85 United States - Measures Concerning the Importation, Marketing and Sale of Tuna and Tuna Products - Report of the Panel (WT/DS381/R ), para 7.89.
86 Id. supra para 4.113
87 UNITED STATES - MEASURES CONCERNING THE IMPORTATION, MARKETING AND SALE OF TUNA AND TUNA PRODUCTS (WT/DS381/AB/R), para 12.
88 United States' response to Panel question No. 52, para. 125 .
89 "Compliance with the product characteristics is mandatory", European Communities - Measures Affecting Asbestos-Containing Products, WT/DS135/AB/R , adopted 5 April 2001, paras. 66-70.
90 United States - Measures Concerning the Importation, Marketing and Sale of Tuna and Tuna Products - Report of the Panel (WT/DS381/R ), para 4.54.
91 Id. para 7.116.
92 Id. para 7.117.
93 Id. supra para 7.131
94 Id. supra note 40, para 199.
95 Id. supra para 7.621.
96 United States - Measures Concerning the Importation, Marketing and Sale of Tuna and Tuna Products - Report of the AB (WT/DS406/AB/R), para 330.
98 United States-Certain Country of Origin Labelling (COOL) Requirements, ¶ 369, WT/DS386/AB/R (June 29, 2012)
99 Id. supra para 369
101 Id. supra note 88.
102 Id. supra note 94.
103 TBT Agreement, supra note 9, Annex 1.1
104 See, e.g., Appellate Body Report, Canada-Certain Measures Affecting the Renewable Energy Generation Sector, ¶ 6.1, WT/DS412/AB/R, WT/DS426/AB/R (May 6, 2013) (holding that Canada's renewable energy measures were inconsistent with Canada's WTO obligations); Appellate Body Report, United States-Import Prohibition of Certain Shrimp and Shrimp Products, , WT/DS58/AB/R (Oct. 12, 1998) (holding that the U.S.' import ban on shrimp from countries not certified to use methods that decrease turtle bycatch and mortality was in violation of GATT; Appellate Body Report, United States-for Reformulated and Conventional Gasoline, at 28-29, WT/DS2/AB/R (concluding that a Clean Air Act-related measure violated GATT for being unfairly applied).