In the spirit of the discussion of trade in natural resources that Melaku has been leading, I thought I would do a post on a very technical aspect of the proposed trade ban on bluefin tuna, which may soon be imposed pursuant to the United Nations' Convention on International Trade in Endangered Species (CITES).
I had thought about going through a full analysis of such a ban (GATT Articles I, III, XI and XX, etc.), but I realized that would be too much for a blog post, and that I was better off focusing on the narrow issue that had occurred to me when I first read about the ban: Would a domestic ban on bluefin tuna imports (implemented pursuant to the CITES ban) constitute a "technical regulation" that is subject to the TBT Agreement?
TBT Agreement Annex 1.1 defines "techical regulation" as follows:
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.
At first glance, you might think that such a ban would not be covered, as it does not regulate the "product characteristics", "related processes and production methods," or "terminology," etc. of bluefin tuna. Rather, it simply bans all trade in it. However, according to the Appellate Body in EC - Asbestos, a ban on asbestos was a technical regulation because it regulated all products, by requiring that all products not contain asbestos. In this regard, the Appellate Body said:
72. ... It is important to note here that, although formulated negatively – products containing asbestos are prohibited – the measure, in this respect, effectively prescribes or imposes certain objective features, qualities or "characteristics" on all products. That is, in effect, the measure provides that all products must not contain asbestos fibres. Although this prohibition against products containing asbestos applies to a large number of products, and although it is, indeed, true that the products to which this prohibition applies cannot be determined from the terms of the measure itself, it seems to us that the products covered by the measure are identifiable: all products must be asbestos free; any products containing asbestos are prohibited. ...
75. Viewing the measure as an integrated whole, we see that it lays down "characteristics" for all products that might contain asbestos, and we see also that it lays down the "applicable administrative provisions" for certain products containing chrysotile asbestos fibres which are excluded from the prohibitions in the measure. Accordingly, we find that the measure is a "document" which "lays down product characteristics … including the applicable administrative provisions, with which compliance is mandatory." For these reasons, we conclude that the measure constitutes a "technical regulation" under the TBT Agreement.
Along the same lines, a ban on trade in bluefin tuna could be seen as regulating all products, or at least products such as sushi and sashimi which sometimes contain bluefin tuna, by requiring that all products not contain bluefin tuna. (One objection might be that the measure doesn't ban bluefin tuna entirely, but rather its import and export. While this is true, in a situation where a country does not produce any bluefin tuna of its own, an import ban is effectively a ban on the product.)
Just to be clear, I don't expect any WTO claim relating to a bluefin tuna ban, so this is just an intellectual exercise. It only occurred to me because I just taught a class on the TBT Agreement and was thinking about this particular Appellate Body finding.