The death of dolphins: Will the U.S. comply with the World Trade Organization ruling?

“The beaks of Sam LaBudde’s first dolphins strained against the net that had formed a canopy over them. Their flukes churned the ocean white. They thronged at the surface, desperate to force slack in the net sufficient to free their blowholes for a breath. Their shrieks and squeals began high in the hearing range of humans and climbed inaudible scales above. LaBudde wanted to scream himself.”

—Kenneth Brower, the Destruction of the Dolphins, The Atlantic, July 1989

In 1987, Sam LaBudde went undercover as a cook aboard the Maria Luisa, a Panamanianboat that fished for tuna in the waters of the Eastern Tropical Pacific.LaBudde brought a video camera with him to document the cruel slaughter of dolphins by the multitude in the ETP fishery. Tuna boats chased down, encircled and entangled pods of dolphin in dangerous purse seine nets in order to catch the tuna that swam underneath. 

LaBudde’s undercover documentary film of this atrocity was seen on national news broadcasts by the three major television networks and on local broadcasts across the United States — even members of Congress watched LaBudde’s film when it was shown as part of a hearing on the Marine Mammal Protection Act. In no small part because of LaBudde’s film, Congress enacted the dolphin safe labeling statute in 1990. Today, one of the most trusted environmental labels is the U.S.  “dolphin-safe” label for canned tuna.

As detailed in two previous blog posts, on May 16, 2012 a World Trade Organization Appellate Body ruled that the U.S. dolphin safe label discriminates against Mexican tuna fishers in violation of international trade law. The WTO appellate ruling is arguably as bad as or even worse than the lower panel decision in terms of legal consequences. Instead of determining that U.S. policy is “more trade restrictive than necessary,” it adopted the stricter view that the U.S. dolphin safe tuna labeling program is “discriminatory.”

The U.S. may be faced with the choice of either rolling back its standards or face possible trade sanctions from Mexico, unless action is taken. The WTO has called for the U.S. to bring its policies into conformity. Mexico will likely demand that its tuna industry should be allowed to use a “dolphin safe” label when marketing their tuna products in the United States.

Although the Office of the U.S. Trade Representative cannot by happy about the Appellate Body decision, it is not clear what they plan to do.  To its credit, USTR brought an appeal of the initial panel decision, andsays that it disagrees with the Appellate Body’s finding that the U.S. labelling system does not take into account the risks faced by dolphins in oceans other than the Eastern Tropical Pacific.  But, USTR’s response to the decision has been ambiguous. Nkenge Harmon, a USTR spokeswoman, called the Appellate Body decision a “mixed result” and said that it did not necessarily mean the United States had to abandon the labeling program.  “It’s too soon to say,” Harmon said. “We will review the report carefully and consider its implications. At this time it would be premature to discuss any specific actions that might be required to implement the findings.”

Congressional Democrats have taken a firmer stand.  Rep. Ed Markey (D-Mass.) and 42 other Democratic members of Congress on May 31 delivered a letter to President Barack Obama, urging the President to defend the existing U.S. law on dolphin-safe tuna labeling and to refuse to comply with the WTO appellate decision.  If Mexico seeks to enforce the WTO decision against the U.S., the letter urges the Obama administration to reconsider the hundreds of millions of dollars in economic aid that the United States has given to Mexico.

These House Democrats dismiss the idea of trying to bring U.S. dolphin-safe tuna labeling law into conformity with the WTO appellate decision by imposing a global regulatory regime in the place of the current one focused on the Eastern Tropical Pacific:

The WTO decision…would require the US, in order to avoid alleged unfairness to Mexico, to enforce requirements in other tuna fisheries outside the eastern tropical Pacific that are not needed, since Dolphins practically never associate with tuna schools in these other areas. This absurd requirement would push other tuna fishing nations to object in the WTO against the US that this regulation is more trade restrictive than is warranted. …

The implication of the recent WTO ruling…is that the US should expend significant regulatory resources around the globe in an untargeted fashion, or alternatively, that imports from Mexico could utilize dolphin safe labels without having to meet the same requirements as tuna caught by US or other nations’ fleets. Neither result is acceptable, and “complying” in either way simply invites further costly WTO litigation from other nations, not to mention serious disruption of the canned tuna market in the US and loss of consumer confidence in environmental laws and labels.

The 43 House Democrats are absolutely right- at least with respect to their insistence that the U.S. must not seek to comply with the WTO appellate ruling. Mexican tuna harvested by setting upon dolphins with purse seine nets must not be marketed in the United States with the dolphin safe label.

This is not a trivial issue- ETP dolphins’ reproductive success is threatened by Mexican tuna fishing practices, and simply placing observers on ships, as is now the Mexican practice, is not an adequate safeguard. It can easily miss some serious but unobserved side effects, such as severe stress on dolphins caused by repeated chase-downs, encirclement and entanglement in nets.

We must never forget the millions of these intelligent, social mammals who were killed in the Eastern Tropical Pacific fishery up through the 1980s – mass killings that continued even after Mexican-style “safeguards” for dolphins were in effect.  And, we must never forget how they were killed.

The net was brailed, or hauled in. Its red mesh was scarcely visible, and the dolphins snagged in it seemed to levitate from the sea. High above the deck the great spool of the power block, turning by fits and starts, raised and gathered the seine, conveying the dolphins — some drowned, some still struggling feebly — up toward the block’s tight aperture. The net passed through the block, crushing the dolphins, and then slowly descended to the deck.  LaBudde stepped forward with his shipmates and began disentangling dead and dying dolphins from the mesh. The dying trembled in their death throes.

—Kenneth Brower, Id.