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Obama Administration to Appeal WTO Decision Against Dolphins

Mexico Is Seeking to Overturn the Dolphin Safe Label on Tuna

The Obama administration announced last week that it is in the process of appealing a 2011 decision by the World Trade Organization (WTO) that seeks to weaken the US Dolphin Safe tuna standards. The move has been applauded by Earth Island Institute’s International Marine Mammal Project (IMMP), which established the international Dolphin Safe Tuna labeling program in 1990 and monitors tuna companies around the world for compliance.

Photo by Steve JurvetsonThe Mexican government uses a much weaker standard for calling canned tuna “Dolphin Safe.”

More than 7 million dolphins have been drowned by tuna boats since the practice of chasing and netting dolphins to catch tuna that swim with them was developed in the late 1950’s. There are other ways for fishermen to catch tuna without chasing or harming dolphins. Under US standards, canned tuna cannot be labeled as Dolphin Safe if dolphins were chased by boats, surrounded by nets, killed or seriously injured during the catching of tuna. Dolphin deaths have dropped by 98 percent since the implementation of the IMMP Dolphin Safe program in 1990.

The government of Mexico, however, uses a much weaker standard for calling canned tuna Dolphin Safe; Their tuna boats chase and net dolphins, and then release them afterwards. If an onboard observer claims no dolphins were killed in the net set, then that batch of tuna can be labeled Dolphin Safe (Amigo del Delfin) in Mexico.

This method in fact harms and kills thousands of dolphins annually.  Observers can be bribed or threatened. Baby dolphins can be separated from their mothers during the chase phase, and die alone without ever being seen by the onboard observer. Dolphins can also be injured or killed from stress after release.

Mexico attempted to get Congress to overturn the US Dolphin Safe label standards, but after several years of study, scientists with the US National Marine Fisheries Service proved that chasing and netting dolphins was detrimental to depleted populations of dolphins. Both the Clinton and the George W. Bush administrations tried to override their own scientists, but a series of lawsuits filed by IMMP stopped them.

Mexico then filed a complaint with the WTO. The WTO is set up to promote international trade, without much protection for the environment.

Last fall, a WTO dispute panel put out a very confusing decision on the Dolphin Safe issue. The panel agreed with the US that the protection of dolphins and consumers was an important goal. That should have trumped any decision against the US, but instead the WTO panel ruled the US standards for Dolphin Safe tuna were too “trade restrictive.”  At the same time — and here’s where things get confusing — the panel ruled that the US standards did not discriminate against the Mexican tuna industry nor did the Mexican Dolphin Safe program meet the needs of the US.  To further muddy the waters, the panel ruled that the US standards for the label were “mandatory” on companies, despite the fact that use of the Dolphin Safe Tuna label is in fact voluntary. There is no requirement for canned tuna to carry such a label.  (Indeed, small amounts of Mexican tuna are sold in the US, usually in Latino specialty food stores, without a Dolphin Safe label.)

The WTO appellate panel will now review the issues and either uphold the dispute panel decision or issue a new decision.  IMMP hopes that the appellate panel will fix the contradictory dispute panel decision and reject Mexico’s assertion that the label is a barrier to trade.

In the meantime, the US Office of the Trade Representative is pushing Mexico to fulfill its responsibilities under the North American Free Trade Agreement (NAFTA).  Under the provisions of NAFTA, a country can ask that any trade dispute under the WTO be moved to NAFTA arbitration. The US has requested that this be done for the Dolphin Safe; labeling issue, but Mexico has refused to cooperate. There has been no progress on this issue under NAFTA for almost two years.

IMMP and several other environmental organizations are urging the Obama administration to take stronger steps to obtain Mexico’s cooperation in the NAFTA dispute process. The NAFTA standards for environmental protection are stronger than those of the WTO.

Mark J. Palmer
Mark J. Palmer is Associate Director of the International Marine Mammal Project.

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