The World Trade Organization (WTO) issued a panel report on September 15, 2011, regarding a claim brought by Mexico in October of 2008 against the United States. The Mexican government took issue with certain United States regulations that established the proper use of the “dolphin-safe” label on tuna products, specifically the “Dolphin Protection Consumer Information Act” (16 U.S.C. § 1385), “Dolphin-safe labeling standards” (50 C.F.R. § 216.91), “Dolphin-safe requirements for tuna harvested in the ETP [Eastern Tropical Pacific Ocean] by large purse seine vessels” (50 C.F.R. § 216.92), and the holding from Earth Island Institute v. Hogarth, 494 F.3d 757 (9th Cir. 2007). The regulations require a company to provide evidence about where the tuna is harvested and the method through which it is harvested. Mexico asserted that the American regulations were discriminatory against non-American tuna producers and that the laws were generally unnecessary.
After a dispute process that took nearly three years, a WTO panel found that the American regulations were not discriminatory but were more trade-restrictive than necessary to fulfill their objectives. The panel based this decision on findings that the American regulations only dealt with some of their states objectives and that Mexico had offered a least restrictive manner in which to achieve what the American regulations achieve.
There are multiples issues that arise from this ruling, but one of the main concerns often heard from American legislators is that the ruling subverts the United States’ sovereignty. Issues of sovereignty have been an issue since the WTO was founded in 1994. Prior to 1994, disputes under international trade law could be vetoed by any signatory of the GATT (General Agreement on Tariffs and Trade) ,including the losing party. However, the agreement in 1994 legislated that decisions by the dispute settlement body of the WTO would be binding, and that rulings would only be overturned by a majority vote of member nations.
One of the first cases decided by the WTO asserted that American gasoline regulations under the Clean Air Act were contrary to WTO rules because they discriminated against importers of gasoline by requiring higher standards. This case is likely to be met with the same criticisms. In addition to restricting American sovereignty and a consumer’s ability to make informed decisions, this ruling will have far reaching environmental impacts.
The most interesting issue, to me, really stems from the implicit values that are present in the ruling. It is a ruling that pits environmental values against international trade values. When considering the governing body, it’s not hard to believe that international trade won the day. Is this what Americans want?
The environmental impact from this ruling is uncertain. Proponents of the decision argue that the decision will have not a negative effect on the environment because other regulations can be created that still protect the environment but do not hinder free trade in the same way. However, others fear that American environmental values are taking a back seat to lesser developed countries desire for unfettered trade with the United States. Time will only tell if rebuking this regulation will lead to an increase in dolphin fatalities from tuna fishing.
While the benefits of free trade are widely accepted and hard to dispute, is there a point at which other concerns (in this case environmental) take precedent? To be clear, the WTO did not rule that the United States discriminated against other countries or that the countries are not allowed to regulate the fishing of tuna. It did rule that American regulations of tuna fishing were too restrictive of free trade. Is that an issue that we want to be decided by the WTO or is it one better decided by our domestic policy makers? This is an issue that is only going to become more prevalent as free trade continues to expand, and one that requires some serious thought from American policymakers.
Written by: Keigan Mull, GIELR Staff