TWN Info Service on WTO and Trade Issues (Apr15/06)
24 April 2015
Third World Network
 
US measures on Mexican tuna held WTO-illegal
Published in SUNS #8004 dated 17 April 2015
 
Geneva, 16 Apr (Kanaga Raja) -- A compliance panel at the World Trade Organisation (WTO) has largely ruled that an amended measure instituted by the United States concerning the importation, marketing and sale of tuna and tuna products from Mexico is inconsistent with its WTO obligations.
 
Mexico had sought recourse to Article 21.5 of the Dispute Settlement Understanding (DSU) over the alleged failure of the US to implement an earlier WTO ruling on the issue.
 
On Mexico's claims under Article 2.1 of the Technical Barriers to Trade (TBT) Agreement, the Compliance Panel concluded that:
 
* the eligibility criteria in the amended tuna measure do not accord less favourable treatment to Mexican tuna and tuna products than that accorded to like products from the United States and to like products originating in any other country, and are thus consistent with Article 2.1 of the TBT Agreement;
 
* the different certification requirements in the amended tuna measure accord less favourable treatment to Mexican tuna and tuna products than that accorded to like products from the United States and to like products originating in any other country, in violation of Article 2.1 of the TBT Agreement; and
 
* the different tracking and verification requirements in the amended tuna measure accord less favourable treatment to Mexican tuna and tuna products than that accorded to like products from the United States and to like products originating in any other country, in violation of Article 2.1 of the TBT Agreement.
 
The Panel also issued several rulings with respect to Mexico's claims under the GATT 1994 (see below.)
 
The Panel recommended that the DSB request the United States to bring its measure, which it had found to be inconsistent with Article 2.1 of the TBT Agreement and Articles I: 1 and III: 4 of the GATT 1994 and not justified under Article XX of the GATT 1994, into conformity with its obligations under the TBT Agreement and the GATT 1994.
 
BACKGROUND
 
In providing some background to the dispute, the Panel, in its report released on 14 April, noted that on 13 June 2012, the DSB had adopted the Appellate Body Report on United States - Measures Concerning the Importation, Marketing and Sale of Tuna and Tuna Products (WT/DS381/AB/R) and the Panel Report (WT/DS381/R), as modified by the Appellate Body Report.
 
The DSB ruled inter alia that the US "dolphin-safe" labelling provisions were inconsistent with Article 2.1 of the TBT Agreement and recommended that the US bring its measure into conformity with its obligations under that Agreement.
 
On 17 September 2012, Mexico and the United States informed the DSB that they had agreed that the RPT (reasonable period of time to implement the ruling) was 13 months from 13 June 2012, the date of adoption of the DSB's recommendations and rulings. The RPT expired on 13 July 2013.
 
On 9 July 2013, the United States published in its Federal Register a legal instrument entitled "Enhanced Document Requirements to Support Use of the Dolphin Safe Label on Tuna Products", which the United States referred to as the "2013 Final Rule". According to the United States, the 2013 Final Rule constitutes the measure taken to comply with the DSB recommendations and rulings pursuant to Article 21.5 of the DSU.
 
Mexico considers that the United States has not brought its dolphin-safe labelling provisions into compliance with the DSB's recommendations and rulings. Furthermore, Mexico argues that the amended tuna measure is not consistent with the United States' obligations under the covered agreements.
 
The amended dolphin-safe labelling measure places three types of conditions on use of the dolphin-safe label for tuna products: (1) conditions relating to fishing methods, (2) conditions relating to certifications, and (3) conditions relating to record-keeping (tracking and verification).
 
Mexico claims that the amended tuna measure is inconsistent with the following provisions of the covered agreements:
 
* Article 2.1 of the TBT Agreement, because the amended tuna measure continues to accord Mexican tuna products treatment less favourable than that accorded to like tuna products of the United States and to like tuna products originating in any other country;
 
* Article I: 1 of the GATT 1994, because the amended tuna measure continues to confer on tuna products originating in other countries an advantage which is not accorded immediately and unconditionally to like tuna products originating in Mexico; and
 
* Article III: 4 of the GATT 1994, because the amended tuna measure continues to accord Mexican tuna products treatment less favourable than that accorded to like tuna products of United States' origin in respect of all laws, regulations and requirements affecting their internal sale, offering for sale, purchase, transportation, distribution or use.
 
MEASURE AND SCOPE OF PROCEEDINGS
 
In its ruling with respect to the measure at issue and the scope of the Article 21.5 proceedings, the Panel said that it does not agree with the United States that the 2013 Final Rule is separable from the rest of the tuna measure simply because it does not change any pre-existing requirements but instead adds new requirements.
 
"In our view, the 2013 Final Rule is not a standalone measure but an integral component of the amended tuna measure. To the extent that it interacts with, and indeed forms an integral part of, that measure, the fact that it adds new requirements rather than changing pre-existing requirements is immaterial, and certainly does not have the effect of removing the rest of the tuna measure, which was the object of the DSB's rulings and recommendations, from our jurisdiction."
 
"In finding that we have jurisdiction to consider all of Mexico's claims, we are not suggesting that we have authority to re-examine all of the factual and legal circumstances of the case de novo. We are in full agreement with the European Union that where the original panel or the Appellate Body has made a finding on the basis of certain facts and evidence, and where there is no change in the facts and/or evidence on the basis of which that finding was made, we should not re-assess the issue from the beginning, but rather refer to and rely upon the finding previously made. This is not the same as saying, as the United States does, that such points are outside of our jurisdiction. Rather, our view is that such issues do fall within our jurisdiction, but that we should respect relevant findings made by the panel and the Appellate Body in the original proceedings, whether factual or legal, in the interests of maintaining the security and predictability of the multilateral trading system," said the Panel.
 
The Panel concluded that the legal question before it in these proceedings is whether the amended tuna measure, including the 2013 Final Rule, brings the United States into compliance with WTO law. It finds that it has jurisdiction to consider all of Mexico's claims, including as they relate to the eligibility criteria and the certification and tracking and verification requirements.
 
APPLICATION OF ARTICLE 2.1 OF THE TBT AGREEMENT
 
The Panel said that according to Mexico, the following are the central regulatory distinctions whose design and application give rise to the detrimental treatment of which Mexico complains:
 
* First, Mexico complains about "[t]he disqualification of setting on dolphins in accordance with AIDCP [Agreement on International Dolphin Conservation Program) as a fishing method that can be used to catch tuna in the ETP [Eastern Tropical Pacific Ocean] in a dolphin-safe manner and the qualification of other fishing methods to catch tuna in a dolphin-safe manner". The Panel referred to this aspect of the amended tuna measure as the "eligibility criteria".
 
[Setting on dolphins relates to the practice of intentionally encircling dolphins in order to gain access to the tuna below.]
 
* Second, Mexico highlights "[t]he mandatory independent observer requirements for tuna caught in the ETP by setting on dolphins in accordance with the AIDCP and the absence of such requirements for tuna caught outside the ETP using the same and different fishing methods". The Panel referred to this aspect of the amended tuna measure as the "different certification requirements".
 
* Third and finally, Mexico draws the Panel's attention to "[t]he record-keeping and verification requirements for tuna caught in the ETP by setting on dolphins in accordance with the AIDCP and the different requirements for tuna caught outside the ETP using both the same and different fishing methods". The Panel referred to this aspect of the amended tuna measure as the "different tracking and verification requirements".
 
With respect to the eligibility criteria, Mexico's claim is that the amended tuna measure distinguishes between tuna caught by setting on dolphins and tuna caught by any other method. On the one hand, tuna caught by setting on dolphins is never eligible to receive the dolphin-safe label, even if no dolphins were actually killed or seriously injured in a particular net set. On the other hand, tuna caught by other fishing methods is, in principle, eligible to receive the dolphin-safe label, provided that no dolphins were killed or seriously injured in the particular gear deployment.
 
In Mexico's opinion, this regulatory distinction modifies the conditions of competition in the United States' market to the detriment of Mexican tuna products.
 
As the Panel reads it, the Appellate Body clearly found that setting on dolphins causes observed and unobserved harm to dolphins. However, as the Panel understands it, what makes setting on dolphins particularly harmful is the fact that it causes certain unobserved effects beyond mortality and injury "as a result of the chase itself".
 
These harms would continue to exist "even if measures are taken in order to avoid the taking and killing of dolphins on the nets". It is precisely because these unobserved harms cannot be mitigated by measures to avoid killing and injuring dolphins that the original panel and the Appellate Body found that the United States is entitled to treat setting on dolphins differently from other fishing methods.
 
The Panel reaffirmed the Appellate Body's finding that the United States is entitled, in pursuit of its desired level of protection, to disqualify tuna caught by that method from ever being labelled as dolphin-safe. It recalled that the original US measure was considered WTO-inconsistent (and in particular inconsistent with Article 2.1 of the TBT), not because it disqualified tuna caught by setting on dolphins from accessing the dolphin-safe label, but because the original tuna measure was not even-handed with respect to other methods of fishing which may also cause harm to dolphins - a fact that was not reflected in the original dolphin labelling regime.
 
Accordingly, in the Panel's opinion, the original proceedings have settled the question whether the disqualification of tuna caught by setting on dolphins, together with the qualification of tuna caught by other fishing methods, is inconsistent with Article 2.1 of the TBT Agreement. The Appellate Body found that it is not.
 
"In light of this finding, we do not think it is appropriate for us to re-open this inquiry. Rather, we respect and reaffirm the finding of the Appellate Body that, to the extent that they modify the conditions of competition in the US market to the detriment of Mexican tuna and tuna products, the eligibility criteria are even-handed, and accordingly are not inconsistent with Article 2.1 of the TBT Agreement."
 
The Panel noted that the Appellate Body ultimately found that the original tuna measure was inconsistent with Article 2.1 of the TBT Agreement. This finding was based, however, not on the fact that the United States disqualified tuna caught by setting on dolphins from accessing the dolphin-safe label, but rather on the fact that the regulatory scheme imposed by the United States on tuna fishing methods other than setting on dolphins, which are eligible to catch dolphin-safe tuna, did not sufficiently address the risks posed to dolphins by those methods. The measure was therefore not "even-handed", in violation of Article 2.1.
 
The Panel's view is that Mexico has not provided evidence sufficient to demonstrate that setting on dolphins does not cause observed and unobserved harms to dolphins, or that other tuna fishing methods consistently cause similar harms. Rather, the Panel agreed with the United States that "even if there are tuna fisheries using... gear types that produce the same number of dolphin mortalities and serious injuries allowed or caused in the ETP... it is simply not the case that such fisheries are producing the same level of unobserved harms, such as cow-calf separation, muscular damage, immune and reproductive system failures, which arise as a result of the chase in itself".
 
"As we understand it, this position was also the basis of the original panel and Appellate Body's holding on this issue. Therefore, we find that the new evidence presented in these proceedings merely supports the conclusion reached by the panel and the Appellate Body in the original proceedings."
 
With respect to Mexico's remaining claims of less favourable treatment, namely the different certification and tracking and verification requirements, the Panel noted that in the original proceedings, the panel found, and the Appellate Body accepted, that disqualifying tuna caught by setting on dolphins from accessing the dolphin-safe label "fully addresses the adverse effects on dolphins resulting from setting on dolphins in the ETP". The Appellate Body also found, however, that "the use of certain fishing methods other than setting on dolphins 'outside the ETP may produce and has produced significant levels of dolphin by-catch', and that 'the US dolphin-safe provisions do not address observed mortality', and any resulting adverse effects on dolphin populations, for tuna not caught by setting on dolphins".
 
Because the original measure fully addressed the risks posed to dolphins by the ETP large purse seine fishery, but did not sufficiently address the risks to dolphins arising in other fisheries, the Appellate Body found that the measure was inconsistent with Article 2.1 of the TBT Agreement.
 
As the Panel understands it, then, the Appellate Body required the United States to modify its dolphin-safe labelling regime so as to ensure that it sufficiently addresses similar risks posed to dolphins by all fishing methods in all oceans.
 
"While Mexico has not challenged the new substantive certification requirements, it argues that the continued differences in who must make the substantive certifications in what circumstances, and the different tracking and verification requirements applied inside the ETP large purse seine fishery and outside it, mean that the amended tuna measure does not address similar risks posed to dolphins in different fisheries in an even-handed manner, and therefore continues to violate Article 2.1 of the TBT Agreement."
 
On whether the different certification requirements modify the conditions of competition in the United States' market to the detriment of like Mexican tuna and tuna products, in the Panel's view, it is clear that by not requiring observer coverage outside of the ETP large purse seine fishery, the amended tuna measure imposes a lighter burden on tuna and tuna products made from tuna caught other than by large purse seine vessels in the ETP. In the Panel's view, these facts clearly point to the conclusion that the different certification requirements impose a lesser burden on tuna and tuna products made from tuna caught outside the ETP large purse seine fishery, and thus modify the conditions of competition to the detriment of Mexican tuna and tuna products.
 
Accordingly, the Panel accepted Mexico's claim that the different certification requirements detrimentally modify the conditions of competition because they impose a significantly lighter burden on tuna and tuna products made from tuna caught outside the ETP large purse seine fishery than on tuna caught within it.
 
The Panel concluded that Mexico has made a prima facie case that the different certification requirements in the amended tuna measure modify the conditions of competition in the United States' tuna market to the detriment of like Mexican tuna and tuna products. The United States has not rebutted this case, it said.
 
On whether the detrimental treatment caused by the different certification requirements stem exclusively from a legitimate regulatory distinction, the Panel noted that in Mexico's view, the effect of the different certification requirements is to create "two distinct and conflicting standards for the accuracy of information regarding the dolphin-safe status of tuna: one standard for tuna caught inside the ETP, and a separate and much lower standard for tuna caught outside the ETP".
 
Given, however, that one of the goals of the amended tuna measure is "ensuring that consumers are not misled or deceived about whether tuna products contain tuna caught in a manner that adversely affects dolphins", Mexico concludes that the amended tuna measure's system of captain self-certification "does not bear a rational connection to", and is "entirely inconsistent" and "irreconcilable" with, the objectives of the amended tuna measure, and accordingly cannot be considered to be "even-handed".
 
The Panel found that Mexico has not met its burden of making a prima facie case that captains' certifications are unreliable because captains have a financial incentive not to report accurately on the dolphin-safe status of tuna caught in a given set or other gear deployment. Therefore, this argument does not convince the Panel that relying on captains' certifications outside the ETP deprives the amended tuna measure of even-handedness.
 
In the Panel's view, the United States has not rebutted Mexico's showing that captains may not necessarily and always have the technical skills required to certify that no dolphins were killed or seriously injured in a set or other gear deployment, and this may result in inaccurate information being passed to consumers, in contradiction with the objectives of the amended tuna measure. The Panel therefore found that the different certification requirements are not evenhanded, and so cannot be said to stem exclusively from a legitimate regulatory distinction.
 
"We want to be clear that, in finding that Mexico has made a prima facie case that captains may not always and necessarily have the technical skills necessary to ensure accurate dolphin-safe certification, we are not finding that the only way for the United States to make its measure evenhanded is to require observer coverage," said the Panel, adding that on the basis of the above, it would find that the United States has made a prima facie case that the different certification requirements stem exclusively from a legitimate regulatory distinction.
 
Nevertheless, in light of the evidence submitted by Mexico concerning the complexity of certifying the dolphin- safe status of tuna catch - which evidence was not rebutted by the United States - "we would find that the United States has not explained sufficiently why it assumes that captains are capable of carrying out an activity that the amended tuna measure itself recognizes as highly complex and for which training and education are required. In the absence of such explanation, we would be compelled to find that while the United States may legitimately draw distinctions between the ETP large purse seine fishery and other fisheries, the lack of explanation concerning the technical capacities of captains means that the different certification requirements cannot be said to be even-handed, and as such to stem exclusively from a legitimate regulatory distinction."
 
For the foregoing reasons, the Panel believes that the determination provisions open up a gap in the certification procedures applied outside the ETP large purse seine fishery. These provisions appear to be designed to enable the United States to impose conditions on fisheries other than the ETP large purse seine fishery where the conditions in the former approach those of the latter. This would help ensure that similar situations are treated similarly under the amended tuna measure.
 
However, a determination of regular and significant mortality cannot be made in respect of purse seine fisheries outside the ETP, and a determination of regular and significant tuna-dolphin association cannot be made in respect of non-purse seine fisheries. This means that, in some cases, fisheries other than the ETP large purse seine fishery may be treated differently, and less stringently, under the amended tuna measure even where the conditions in that fishery mirror those in the ETP large purse seine fishery, either in terms of the level of dolphin mortality or the degree of tuna-dolphin association. The United States has not provided sufficient explanation as to why this aspect of the amended tuna measure is structured in this way, or how it relates to the objectives pursued by the labelling regime.
 
The Panel is therefore not convinced that this gap stems exclusively from a legitimate regulatory distinction.
 
The Panel noted that one of the panellists was unable to agree with the reasoning and conclusions in paragraphs 7.233-7.246 of the report.
 
The dissenting panellist said: "While I agree with many of the intermediate factual findings made by the majority in respect of the different certification requirements, I do not agree with the legal reasoning or conclusions that my colleagues have developed on the basis of those findings. Most importantly, I do not agree that the different certification requirements lack even-handedness. On the contrary, in my opinion any detrimental treatment caused by the different certification requirements does stem exclusively from a legitimate regulatory distinction, and accordingly is not inconsistent with Article 2.1 of the TBT Agreement."
 
"As such, in my view, the general rule that captains' certifications are sufficient outside the ETP large purse seine fishery while observers are required inside the ETP large purse seine fishery is even-handed. I think that this distinction represents a fair response to the different risk profiles existing in different fisheries, as established by the evidence."
 
"Having said that, I agree fully with the majority's reasoning concerning the determination provisions, explained in paragraphs 7.247-7.263 above. In my view, the fact that a determination of regular and significant mortality cannot be made in respect of purse seine fisheries outside the ETP, and the fact that a determination of regular and significant tuna-dolphin association cannot be made in respect of non-purse seine fisheries, has not been explained or justified. This aspect of the different certification requirements is therefore inconsistent with Article 2.1 of the TBT Agreement."
 
The Panel went on to address the third instance of less favourable treatment raised by Mexico under Article 2.1 of the TBT Agreement that concerns the different record keeping and verification requirements that apply to tuna caught by large purse seine vessels in the ETP on the one hand and all other tuna on the other hand.
 
On whether the different tracking and verification requirements modify the conditions of competition in the United States' market to the detriment of like Mexican tuna and tuna products, the Panel said that to help it better understand how dolphin-safe certifications are kept together with particular batches of tuna during trans- shipment, it asked the parties to explain whether "dolphin-safe certifications always follow or stay with the tuna catch that they describe", or whether such certifications are or can be "assigned at a later point (i. e. sometime after catch) to other batches of tuna that may not have been caught in a dolphin-safe manner".
 
Mexico submitted that although it is not aware of any specific instances of dolphin-safe certifications being sold so as to accompany a batch of non-dolphin-safe tuna, nevertheless "the US system allows for certifications to be assigned to batches of tuna that may not have been caught in a dolphin-safe manner". In particular, Mexico argues that "the unreliability of the ... tracking and verification procedures, make it simple to assign a captain's certificate to any shipment of tuna products".
 
The Panel concluded that Mexico has established a prima facie case that the different tracking and verification requirements modify the conditions of competition in the United States' tuna market to the detriment of like Mexican tuna and tuna products. The system in place outside the ETP large purse seine fishery is less burdensome than that inside the ETP, and may contribute to inaccurate labelling of tuna caught outside the ETP large purse seine fishery, although the Panel makes no definitive finding on this specific point, because it would require consideration of other factors that may result in tuna being incorrectly labelled.
 
"We want to be clear that this conclusion does not entail the finding that the tracking and verification system for tuna caught by large purse seine vessels in the ETP is itself infallible or that tuna tracked under that system could never be incorrectly labelled as dolphin-safe."
 
Having found that the different tracking and verification requirements modify the conditions of competition in the United States tuna market to the detriment of Mexican tuna and tuna products, the Panel turned to consider whether this detrimental impact stems exclusively from a legitimate regulatory distinction.
 
Following its analysis, the Panel found the United States has not rebutted Mexico's prima facie showing that the different tracking and verification requirements do not stem exclusively from a legitimate regulatory distinction. The United States has failed to explain sufficiently why it imposes different tracking and verification requirements on tuna depending on the fishery in which and the method by which it was caught. None of the explanations provided by the United States suggests a connection between the detrimental treatment and the policy objectives pursed by the amended tuna measure.
 
"Accordingly, we find that the different tracking and verification requirements accord less favourable treatment to Mexican tuna products than to like tuna products from the United States and other WTO Members in contravention of Article 2.1 of the TBT Agreement."
 
CLAIMS UNDER THE GATT 1994
 
With respect to Mexico's claims under the GATT 1994, the Panel concluded that: the eligibility criteria in the amended tuna measure accord less favourable treatment to Mexican tuna and tuna products than that accorded to like products from the United States and to like products originating in any other country, in violation of Articles I: 1 and III: 4 of the GATT 1994; the different certification requirements in the amended tuna measure accord less favourable treatment to Mexican tuna and tuna products than that accorded to like products from the United States and to like products originating in any other country, in violation of Articles I: 1 and III: 4 of the GATT 1994; and the different tracking and verification requirements in the amended tuna measure accord less favourable treatment to Mexican tuna and tuna products than that accorded to like products from the United States and to like products originating in any other country, in violation of Articles I: 1 and III: 4 of the GATT 1994.
 
With respect to the US defence under Article XX of the GATT, the Panel noted that in this dispute, the United States argues that if the tuna amended measure is found to be inconsistent with Articles I and/or III of the GATT 1994, it is nevertheless justified under Article XX(b), as a measure necessary to protect the health of dolphins, and under Article XX(g), as a measure relating to the conservation of natural resources.
 
The Panel found that the features of the amended tuna measure that give rise to violations of Articles I and III of the GATT 1994 are nevertheless provisionally justified under sub-paragraph (g) of Article XX the GATT 1994. In its view, these features clearly "relate to" the goal of conserving dolphins, and are also made effective in conjunction with restrictions on domestic production of tuna products.
 
In addition to its defence under Article XX(g), the United States also claims that the amended tuna measure is justified under Article XX(b). That provision provides an exception for GATT-inconsistent measures that are "necessary to protect human, animal or plant life or health". On this point, the Panel chose to exercise judicial economy in respect of the United States' defence under Article XX(b).
 
The Panel considered whether the United States has demonstrated that the amended tuna measure, and in particular the three challenged aspects of the amended tuna measure that are inconsistent with Articles I and III of the GATT 1994 but provisionally justified under Article XX(g) of that Agreement, are applied in a manner that constitutes a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail, or a disguised restriction on international trade.
 
The Panel believed that the United States has demonstrated that the eligibility criteria are applied in a manner that does not constitute a disguised restriction on trade. Indeed, setting on dolphins is a "particularly harmful" fishing method, and other fishing methods do not cause the same kinds of unobserved harms to dolphins as are caused by setting on dolphins, although according to the Appellate Body they may, in some circumstances, cause the same kinds of observed harms.
 
The eligibility criteria are in line with the fundamental rationale and objective of the amended tuna measure, i. e. to contribute to the protection of dolphins. Any restrictions they cause are directly connected to the main goal of the amended tuna measure and therefore cannot be considered "disguised".
 
"Accordingly we conclude that this aspect of the measure is not inconsistent with the requirements of the chapeau."
 
On the different certification requirements, in the Panel's view, "we do not think the United States has shown that the different certification requirements do not impose any arbitrary or unjustifiable discrimination. Requiring certification by captains only outside the ETP is not justifiable unless the United States can explain why it believes that captains have the necessary expertise to perform the duties necessary to certify compliance with the dolphin-safe label criteria. The United States has not explained sufficiently how captains can perform the duties inherent to the certification for the dolphin-safe label since they do not appear to have the specific expertise required to do so thoroughly." (Paragraph 7.603)
 
In the Panel's view, the findings it made in the context of Article 2.1 apply with equal force in the context of the chapeau of Article XX. Insofar as the different certification requirements are not justified by the objective of conserving dolphins by providing consumers with accurate information about the dolphin-safe status of tuna products, it finds that this aspect of the amended tuna measure is unjustifiably and arbitrarily discriminatory.
 
"We also find that, unlike in the context of the eligibility criteria, for the purposes of this element of the measure, the conditions prevailing among Members are the same, because dolphins may be killed or seriously injured by all fishing methods in all oceans, and accordingly accurate certification is necessary regardless of the particular fishery in which tuna is caught. Thus, the Panel finds that the different certification requirements are not applied consistently with the requirements of the chapeau of Article XX of the GATT 1994." (Paragraph 7.605)
 
One of the panellists had a separate opinion on this issue, who said: "In my view, the conditions inside the ETP are not the same as those in other fisheries. In my opinion, the United States has demonstrated that the different requirements as to who must make a dolphin-safe certification are rationally connected to the different risks facing dolphins in different areas and from different fishing methods, because those requirements are "calibrated" or otherwise proportionate to those risks. Accordingly, I do not agree with the majority view expressed in paragraph 7.603 above. In my view, requiring observers only in the ETP is not arbitrarily or unjustifiably discriminatory, contrary to the requirements of the chapeau of Article XX of the GATT 1994."
 
"However, in the context of Article 2.1 of the TBT Agreement, I joined with the majority in finding that the United States has not explained or justified the discrimination caused by the so-called "determination provisions", which only allow the Assistant Administrator to make certain determinations in respect of certain fisheries. These provisions unjustifiably limit the capacity of the amended tuna measure to respond to situations where the risks to dolphins are on a par with those in the ETP large purse seine fishery. Accordingly, I agree with the majority's reasoning at paragraph 7.605 and would find that for this reason the United States has not succeeded in showing that the different certification requirements are not applied in a manner that gives rise to arbitrary or unjustifiable discrimination."
 
On the different tracking and verification requirements, the Panel said that it has already reached the conclusion that the different tracking and verification requirements are not even-handed within the meaning of Article 2.1 of the TBT Agreement because they cause a detrimental impact that the United States has not justified on the basis of the objectives pursued by the amended tuna measure.
 
"In our opinion, the circumstances that gave rise to the breach of Article 2.1 of the TBT Agreement give rise also to arbitrary and unjustifiable discrimination under the chapeau of Article XX of the GATT 1994."
 
The Panel concluded that the different tracking and verification requirements are applied in a manner that constitutes unjustifiable and arbitrary discrimination contrary to the chapeau of Article XX of the GATT 1994. +