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| Photo Courtesy of NOAA. |
By Andrew Lurié*
After more than twenty years of legal wrangling, Mexican tuna fisheries
still remain unable to access the U.S. market using the Dolphin Safe label,
which is a de facto requirement for
having your tuna actually sell in the U.S.
The Mexican tuna industry stubbornly continues to “set on” dolphins — exploiting
the mysterious phenomenon involving tuna schooling below dolphin pods in the
Eastern Tropical Pacific Ocean (ETP) by encircling the dolphins in their nets
in order to catch the tuna below — leaving their tuna ineligible for the
coveted Dolphin Safe label.
Last year, the Appellate Body of the World Trade Organization (WTO) found
that the Dolphin Safe labeling law—the Dolphin Protection Consumer Information
Act (DPCIA)—provided “less favorable treatment” to Mexican tuna products in
violation of WTO provisions.[1]
As a result, Mexico figured that the U.S.
would finally be forced to relax its Dolphin Safe requirements with respect to
setting on dolphins in the ETP. However,
the U.S. instead chose to amend other portions of the rules issued pursuant to
the DPCIA in order to come into compliance with the WTO decision, leaving intact
the prohibition on setting on dolphins. Thus,
it was no surprise that Mexico immediately denounced the U.S. compliance
measure as insufficient and announced that it will pursue consultations with
the U.S. in the WTO.
However, despite Mexico’s bluster, there is little doubt that the
amended DPCIA rules fully comply with the Appellate Body’s ruling. The Appellate Body’s quibble with the
previous iteration of the DPCIA was not that it had a detrimental impact on
Mexican tuna fisheries or that it imposed differing regulatory requirements on
tuna fishing inside the ETP and outside the ETP but instead that these
regulatory distinctions were improperly calibrated to the different risks to dolphins
in each area.[2] Basically, while fully addressing the greater
risk to dolphins related to intentionally setting on dolphins inside the ETP, the
DPCIA ignored the lesser risks to dolphins from tuna fishing methods other than
purse seine fishing and driftnetting and in areas outside the ETP.
To comply with this ruling, the U.S. amended the DPCIA to address the
risks to dolphins outside the ETP and included the exact change that the
Appellate Body intimated would suffice: [3]
a new requirement that no dolphins are killed or seriously injured in the sets
in which the tuna is caught. [4] The U.S. declined to require certification of
this new requirement by an independent observer with respect to tuna fishing
outside of the ETP, allowing a captain’s certification in certain circumstances.[5]
This decision can be contrasted with the
requirement for independent observer certification inside the ETP.[6]
However, this difference encapsulates
the permissible “calibration” of the DPCIA to the different risks to tuna in
different parts of the ocean: stiffer requirements where the risks to dolphins
are higher (inside the ETP) and less stringent requirements where the risks to
dolphins are lower (outside the ETP). Notably,
the Appellate Body stated that requiring independent observer certification
would not be the only way to address the risks posed by fishing techniques
other than setting on dolphins and suggested that a captain’s certification
could suffice.[7] Thus, the U.S. compliance measure fulfills
its WTO obligations.
Whether from pride, pigheadedness, or political reasons, Mexico just
can’t seem to give up the fight. It
would certainly be a wiser use of Mexican resources to subsidize its tuna
industry’s adoption of alternative fishing methods than to spend millions of
dollars on further WTO actions. One can
only hope that a compliance panel will convince Mexico to finally phase out the
antiquated practice of setting on dolphins.
*
Andrew Lurié is the Senior Attorney for International Law & Trade at the Humane
Society of the United States.
[1] U.S. –
Tuna (II), AB Report, para. 299.
[2] Id. at paras. 297-98.
[3] U.S. —
Tuna (II), AB Report, paras. 292-97.
[5] See id.
[6] See 50 C.F.R. §216.93(c)(1);
see also 50 C.F.R. §216.91(a)(1)(i)
& (ii).
[7] U.S. –
Tuna (II), AB Report, para. 296.
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