Why International Trade is not Dolphin Safe

Seth Victor

You may have your own opinions about the World Trade Organization (WTO), whether positive or negative. Regardless, the WTO wields influence over imports and exports worldwide. As we have discussed at length on this blawg, animals are commodities, and thus the policies of the WTO are important when considering animal rights.Dolphins in Net

Over the last several months the WTO has taken issue with dolphin-safe tuna. To summarize what is a long and involved debate, since 1990 the United States has provided labels specifying whether dolphins were killed (though “harmed” isn’t covered) through the harvesting of tuna to be sold in the U.S. market under the Dolphin Protection Consumer Information Act (originally the labels really meant that purse seine nets, the type that often harm dolphins, weren’t used). Mexico, via a complaint to the WTO, claimed that these dolphin safety measures unfairly impeded Mexico’s tuna trade. The WTO agreed, and ruled that the dolphin-safe labels are “unnecessarily restrictive on trade.”  This ruling comes out of one of the core principles of the WTO’s policy of non-discrimination. Under the doctrine of “the most favoured nation” all WTO countries must extend to each other the same trade advantages as the most prefered trading nation would receive. National equality also states that foreign traders must be treated the same way as domestic traders. When you consider the long history of violence and discrimination associated with international trade, including the United States’s own origins, this is sound policy. Yet as always, the devil is in the application.

Though the United States is often on the wrong side of international agreements, here we have at issue one of the few pro-animal laws Congress has produced, and one we should perhaps be wary of eroding. To be clear, the WTO held that Mexican tuna products are not afforded less favourable treatment than tuna products of the US on the basis of their origins. The WTO did find, however, that the dolphin-safe labels are overly trade-restrictive to fulfill the legitimate objects of the Unites States, based on two findings:

(i)the findings that the US dolphin-safe labelling provisions only partly address the legitimate objectives pursued by the United States and (ii) the finding that Mexico had provided the panel with a less trade restrictive alternative capable of achieving the same level of protection of the objective pursued by the US dolphin-safe labelling provisions.

So what does this mean? The WTO is saying that the US is banning tuna harvested from a form of fishing wherein fishermen “set upon” tuna schools that are often herded by dolphins. The dolphins circle above the fish, and hunt them. Dolphins are killed when the fishermen go through the dolphins to get to the tuna. The WTO recognizes that the US has a legitimate interest in protecting the dolphins, and that this method of fishing puts the dolphins at risk. The types of tuna that the US allows, however, have been harvested under fishing conditions that place the dolphins at equal risk of being killed. In that sense, the US is prejudicing Mexico’s trade by banning only one variant of risky fishing. The WTO was unclear on how all of this fits within the International Dolphin Conservation Program, which ideally would provide some protection for the dolphins. The appellate board also suggests that the “less trade restrictive alternative” doesn’t work as well as Mexico claims it does to achieve the requisite protection.

It is unknown at this stage what actual effect this ruling will have. The United States has until July 13, 2013 to conform with the WTO ruling, but there is talk of further appeal. Whether this ruling illegally overrides United States law is still in question. The only real, and perhaps unsurprising, outcome will be a worse situation for dolphins. This complaint indicates that rather than attempt to similarly modify their own fishing policies, Mexican fisherman are continuing to implement a technique that the United States and the WTO find to be harmful. Though there is merit in the argument for consistency in all approved fishing methods, that should not prevent us from outlawing ones that are proven to be detrimental. As is too often the case, we again see an uneasy compromise between animals as creatures, and animals as commodities. Furthermore, if and when the US complies with this ruling, whatever the result, it will mean a weakening of dolphin protection in some form, even if the dolphin-safe labels are preserved. Much like the questionable USDA certified organics, or the “cage-free” chickens, we won’t really know what that label means, or if it is really providing protection. Given Mexico’s implications, it doesn’t even mean that much now.

The best case scenario is we keep the status quo, but if this WTO hearing shows nothing else, it is that the international community desperately needs to be taking steps forward for marine animal protection, not squabbling over the few gains it has taken so long to establish.

One Response

  1. I THINK I understand this post, but it’s not the easiest subject for a lawyer/law student to put into plain English (you did a good job) or for a non-lawyer like me to fully grasp.

    Well, at least I definitely understand the last sentence — and agree with it.

    Thanks for keeping us in the loop.

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