Mark J. Palmer, Int'l Marine Mammal Project
Yet again the World Trade Organization (WTO) has ruled that unfettered trade takes precedence over science and environmental protection. From the outset of the development of free trade agreements, environmental organizations including Earth Island have objected to free trade standards that allow exceptions to environmental laws. This time, however, the WTO’s effort to dismantle US laws to protect dolphins are also being strongly opposed by the US Government’s Trade Representative’s Office.
The WTO and its predecessor trade agreement has repeatedly claimed the Dolphin Safe standards established by the US, which prevent the use of the Dolphin Safe label on tuna caught by chasing and netting tuna, somehow “discriminate” against Mexico. Mexico’s tuna fleet continues to chase, net, injure and kill thousands of dolphins annually to catch tuna. Mexico’s tuna can be sold legally in the United States, but it cannot carry a phony Dolphin Safe tuna.
Now the WTO tribunal has issued a very narrow ruling that even though the US dolphin safe laws are valid conservation measures, because vessel observer coverage rules within the Mexican fishing area and the rest of the world are not identical, that this constitutes a discriminatory measure.
International Marine Mammal Project Director David Phillips stated that the ruling “defies all logic and science.”
“The ruling’s advice that the US jettison 25 years of effective dolphin safe labeling and its positive effects on dolphin conservation shows just how out of touch the WTO is,” Phillips added. “Not a single scientist, conservationist, tuna company or legislator we’ve spoken to has any intention of supporting the outlandish advice of the WTO.”
The States reaction to the ruling was a swift and stinging rebuke, warning the WTO that the decision and procedures are in fact contradictory and damaging to the overall workings of the WTO.
The US statement, noted: “The [WTO] reports reaffirm that the objectives pursued by the U.S. measure – consumer information and protecting dolphins – are proper ones for WTO purposes. Nothing in the Panel or Appellate Body findings to be adopted today call for the United States to reduce or compromise consumer information or the protection of dolphins.”
The US then stated: “That said, the [WTO] panel and Appellate Body reports raise a number of very serious concerns.“
The US noted: “First, this was a question of de facto discrimination. Yet the Appellate Body concluded that the U.S. measure was inconsistent with the covered agreements based solely on provisions that had never been applied. Consequently, there were no facts beyond the face of the measure on which the Appellate Body relied.
“And indeed, there was no evidence on the record that either type of fishery specified in the ‘determination provisions’ existed anywhere in the world. Further, neither the Panel nor the Appellate Body suggested that there was any evidence that a fishery falling into either theoretical ‘gap’ in the provisions existed. Consequently, there could be no basis to expect that the ‘determination provisions’ would ever be operational.”
In a word, the WTO panel went out of its way to speculate on hypothetical examples of tuna fisheries where some harm “might” happen to dolphins, but for which there is no evidence such a problem exists.
“In this regard,” the US stated, “the Appellate Body report is also troubling because it appears to signal that a measure with purely hypothetical gaps will be found inconsistent unless the responding Member proves that a challenged measure could never be discriminatory, even in relation to hypothetical scenarios.
“Furthermore, the “determination provisions” had nothing to do with the complaint of Mexico regarding trade. Since these provisions had never been applied and there were no facts to support that they ever would apply, they were not affecting the conditions of competition for Mexican tuna products. And they had never affected the labeling of tuna products.”
The US added: “In pursuing legitimate objectives, Members should not be held to the impossible standard of designing and applying a measure that corresponds exactly to the one that a panel or the Appellate Body would have designed to achieve the legitimate objective at issue. Regulators design measures to address facts, risks, and situations actually presented, not premises and hypothetical scenarios.”
“Finally,” the US concluded, “the fact that both the Panel and the Appellate Body acknowledged that the United States had addressed the problem identified in the DSB recommendations and rulings but nonetheless found that the measure breached WTO rules for other reasons – reasons that could have been but were not raised in the original proceeding – sends a troubling signal to Members. It signals that despite a responding Member’s best efforts at compliance, Members can have no confidence that the DSB recommendations and rulings provide clarity on what needs to be done. Rather, under the approach used in this dispute, compliance with recommendations and rulings only opens the door for ongoing challenges, inviting complaining parties to devise new criticisms and arguments.”
The WTO dispute over the Dolphin Safe tuna issue now goes into arbitration between the US and Mexico over possible damages to Mexico. The US position is that there is no damage to Mexico, because (1) Mexican tuna can be sold in the US, just not with a Dolphin Safe label, and (2) even with a phony Dolphin Safe label, no one in the US will buy dolphin-deadly tuna from Mexican tuna fisheries.
Our thanks to the US Office of the Trade Representative for fighting back against the flawed ruling of the WTO and standing firm for the integrity of the Dolphin Safe label.
Earth Island’s International Marine Mammal Project works to monitor tuna from all over the world to ensure that the Dolphin Safe label means what it says – that no tuna is caught by the intentional chasing and netting of dolphins. We further work to prevent trade tribunals from undercutting the successful Dolphin Safe label. Please consider a donation to our efforts to protect dolphins and other marine life from harm in tuna nets.