The Tuna-Dolphin saga continues

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.
[2] Id. at paras. 297-98.
[5] See id.