The General Agreement on Tariffs and Trade (GATT) Tuna-Dolphin I and Tuna-Dolphin II disputes, were two cases involving United States embargoes on yellowfin tuna and yellowfin tuna products imported from Mexico and other countries, that use purse-seine fishing methods which have resulted in a high number of dolphin kills.
Mexico took the United States before the GATT/WTO panel, on grounds, they argued, that United States conditions for “dolphin-safe” labeling were “discriminatory and unnecessary,” and that they violated Articles 2.1, 2.2, and 2.4 of the Technical Barriers to Trade (TBT).
This dispute arises out of a challenge brought by Mexico against certain legal instruments of the United States (the “measure at issue”) establishing the conditions for the use of a “dolphin-safe” label on tuna products. The legal instruments identified by Mexico in its panel request comprised the United States Code, Title 16, Section 1385 (the “Dolphin Protection Consumer Information Act” or the “DPCIA”), implementing regulations, and a ruling by a US federal appeals court in Earth Island Institute v. Hogarth relating to the application of the DPCIA.
The measure at issue does not make the use of a “dolphin-safe” label obligatory for the importation or sale of tuna products in the United States. The conditions established in the measure at issue vary depending on the area where the tuna contained in the tuna product is caught and the type of vessel and fishing method by which it is harvested.
In particular, tuna products made from tuna caught by “setting on” dolphins (that is, chasing and encircling dolphins with a net in order to catch the tuna associating with them) are not eligible for a “dolphin-safe” label in the United States. Before the Panel, Mexico alleged that the measure at issue is inconsistent with Articles I:1 and III:4 of the GATT 1994, and Articles 2.1,
For Article 2.1, the panel rejected Mexico’s claims that U.S. dolphin-safe labeling measures discriminated against Mexican tuna products.
For Article 2.4, ruled in favor of the U.S., concluding that its dolphin-safe labeling was not in violation of Article 2.4, which requires “technical regulations to be based on relevant international standards where possible.”
For Article 2.4, however, the panel did agree with Mexico that the United States dolphin-safe labeling measures were more trade restrictive than necessary to achieve their objectives.
The United States and Mexico both appealed the panel report.
In the tropical waters of the Pacific Ocean west of Mexico and Central America, large yellowfin tuna (Thunnus albacares) swim together with several species of dolphins: pantropical spotted (Stenella attenuata), spinner (S. longirostris) and, to a lesser extent, common (Delphinus delphis) dolphins. The association of tuna and dolphins appears to be related to reducing the risk of predation when the habitat of the tuna is restricted to warm surface waters by the oxygen minimum zone. Tuna-dolphin associations occur in other oceans but are most common in the eastern tropical Pacific (ETP), where the oxygen minimum zone is especially well-developed.
The regularity and strength of the tuna-dolphin association in the ETP has permitted the development of a purse-seine fishery based on it (National Research Council, 1992). The fishermen capture tuna and dolphins together, then release the dolphins from the net. In the early years of the fishery, bycatch of dolphins was very high, leading to significant reductions in the dolphin populations. The public outcry over the large dolphin bycatch was one of the factors behind the passage of the US Marine Mammal Protection Act. The number of dolphins killed since the fishery began is estimated to be over 6 million animals. For comparison, the total number of whales of all species killed during commercial whaling in the twentieth century was about 2.9 million. However, the dolphin bycatch has now been reduced to a small fraction of its former level.
Dolphin-safe labels are used to denote compliance with laws or policies designed to minimize dolphin fatalities during fishing for tuna destined for canning.
Some labels impose stricter requirements than others. Dolphin-safe tuna labeling originates in the United States. The term Dolphin Friendly is often used in Europe, and has the same meaning, although in Latin America, the standards for Dolphin Safe/Dolphin Friendly tuna is often weaker than elsewhere. The labels have become increasingly controversial since their introduction, particularly among sustainability groups in the U.S., but this stems from the fact that Dolphin Safe was never meant to be an indication of tuna sustainability.
While the Dolphin Safe label and its standards has legal status in the United States under the Dolphin Protection Consumer Information Act, a part of the US Marine Mammal Protection Act, tuna companies around the world adhere to the standards on a voluntary basis, verified by the non-governmental organization Earth Island Institute, based in Berkeley, CA.
The Inter-American Tropical Tuna Commission has promoted an alternative Dolphin Safe label, but the standards are much weaker than the US standards under statute or the voluntary international standards set by Earth Island Institute, and is largely confined to Latin America.
According to the U.S. Consumers Union, these labels provide no guarantee that dolphins are not harmed during the fishing process because verification is neither universal nor independent. Still, tuna fishing boats and canneries operating under any of the various U.S. labeling standards are subject to surprise inspection and observation.
For US import, companies face strict charges of fraud for any violation of the label standards, while Earth Island Institute, an independent environmental organization, verifies the standards are met by more than 700 tuna companies outside the U.S through inspections of canneries, storage units, and audits of fishing logs.
International observers are increasingly part of the Dolphin Safe verification process, being present on virtually all purse seine tuna boats in the Pacific Ocean.
