WTO rules Dolphin-Safe Tuna labels illegal under trade agreements

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WTO rules Dolphin-Safe Tuna labels illegal under trade agreements

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https://theintercept.com/2015/11/24/wto ... greements/
WTO Ruling on Dolphin-Safe Tuna Labeling Illustrates Supremacy of Trade Agreements

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International trade deals like the Trans-Pacific Partnership (TPP) need to be carefully examined piece by piece because they can take precedence over a country’s own laws.

Case in point: the World Trade Organization (WTO) on Friday ruled that dolphin-safe tuna labeling rules — required by U.S. law, in an effort to protect intelligent mammals from slaughter — violate the rights of Mexican fishers.

As a result, the U.S. will have to either alter the law or face sanctions from Mexico.

I wrote a few weeks ago about how the “investor-state dispute settlement system” baked into trade agreements can force countries to compensate corporations when regulations cut into their profits.

The long-running quarrel over tuna reveals another way that domestic laws can be overturned by trade agreements: when countries can file trade challenges on behalf of domestic industries.

“This should serve as a warning against expansive trade deals like the Trans-Pacific Partnership that would replicate rules that undermine safeguards for wildlife, clean air, and clean water,” said the Sierra Club’s Ilana Solomon in a statement.

In the Marine Mammal Protection Act (MMPA) of 1972, the United States banned importation of yellowfin tuna harvested with netting that also scooped up dolphins, which often swim in the eastern Pacific Ocean above yellowfin schools. Since the 1950s, millions of dolphins have been killed in the tuna fishing trade, but the MMPA resulted in significant reductions in dolphin deaths.

Mexico, which has more lax fishing standards than the U.S., launched trade challenges in 1990 to overturn the import ban. Other nations piled on to the trade challenges, seeking to force the U.S. to change its dolphin conservation practices.

Congress did weaken the law in a series of amendments in 1997, replacing the import ban with a voluntary labeling policy. This allowed countries to use the same harmful netting that caught dolphins, as long as they ensured no dolphins were killed. Tuna caught without conforming to these standards can still be sold in the U.S., just without the dolphin-safe label.

But in 2008, Mexico launched a case against the revamped tuna labeling law, arguing that it still violated international trade agreements.

The WTO has ruled in Mexico’s favor on four separate occasions since 2011, most recently last Friday, in a final ruling that cannot be appealed. Though the U.S. changed its label standards several times, most recently in 2013, the WTO said that the law discriminates against tuna caught in Mexico, relative to other countries. Informing consumers of the fishing practices used to catch their tuna, the WTO concluded, represented a “technical barrier to trade.”

Tim Reif, general counsel at the U.S. Trade Representative’s Office, told Reuters that the U.S. won’t have to reduce protection for dolphins or change its labeling requirements. But the U.S. must either conform its law to the WTO ruling or face Mexican retaliation against U.S. imports unless officials negotiate with Mexico to find some resolution.

The same language that enabled the WTO to rule for Mexico and against U.S. sovereign law is replicated in the Trans-Pacific Partnership, according to the Sierra Club.

The Obama administration claims that the TPP strengthens wildlife conservation, including for marine mammals. But the TPP’s rules actually only bind the members to “take measures to combat” trade in wildlife, instead of forcing them to expressly prohibit it. And despite that conservation chapter, the agreement would remain subject to challenges to things like dolphin-safe tuna labeling.

This calls into question the numerous claims from the administration that no trade agreement can force the U.S. to change its laws. In the case of tuna labeling, that has already occurred, and now may happen again.

Just because a WTO panel or investor-state dispute settlement tribunal cannot specifically force laws to be rolled back, the sanctions they can impose can clearly raise enough pressure to lead to such an outcome.

Mexico and Canada are on the verge of effectively striking down another U.S. labeling law, this one mandating country-of-origin identification on meat and produce. The WTO ruled against that law in May, and Canada and Mexico proposed $3.7 billion in retaliatory sanctions.

In June, the House voted to repeal the country-of-origin labeling law rather than pay the fine.
TLDR: In 1972 the US passed a law forbidding the import or sale of tuna caught without nets that were safe for dolphins. In the 90s Mexico sued the US in the WTO, saying that the law was a "barrier to free trade". The US abandoned the ban and replaced it with a voluntary label stating it's "Dolphin-safe", but this wasn't enough for Mexico or the WTO, who ruled that the US must accept tuna whose harvesting killed many dolphins, and without any way for the consumer to know which tuna killed dolphins and which didn't.

TLDR of TLDR: Because of trade agreements (like the TPP) the tuna you buy at the store may now have involved killing a bunch of dolphins without you knowing, and the US can't do a damn thing about it.
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Re: WTO rules Dolphin-Safe Tuna labels illegal under trade agreements

Post by The Romulan Republic »

Not saying this is a good attitude in general, but couldn't the US just ignore international law, as it and other nations so often do?
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Re: WTO rules Dolphin-Safe Tuna labels illegal under trade agreements

Post by Isolder74 »

This isn't a demand for free trade. It's just a way to ignore real environmental concerns just to save money because Mexican Factory Ships owners don't want to spend a minor expense to update their fishing methods.

They want the label removed so they don't have to deal with consumer concerns. More of a reason to require location information on seafood. It is hard for consumers to make an informed decision about what they buy when producers are purposely endeavoring to hide that information.
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Re: WTO rules Dolphin-Safe Tuna labels illegal under trade agreements

Post by Sea Skimmer »

The Romulan Republic wrote:Not saying this is a good attitude in general, but couldn't the US just ignore international law, as it and other nations so often do?
First off I'd point out WTO rulings are a much weaker form of international law then say, a UN treaty, though it does have 160 odd members now, most of the world. The WTO is very specific about whom and what it covers. It is a trade agreement plain and simple. It is not linked to the UN in any way.

As for non compliance, YES. Totally that stuff can just be ignored and that does not turn into a UN resolution to drop the atom bomb on Washington DC. But then WTO rules allow Mexico to legally impose tariffs on US products equal in value to its estimated loss from the US not complying with the ruling. The US and many other countries are presently not complying with a number a WTO decisions. In some rulings the WTO may also award damages, so you get to impose a set value of tariffs to account for past losses, but that was not the case here.

Sometimes plaintiffs do not exercise the right for retaliatory tariffs when awarded, but that's rare and generally linked to other factors.

The whole point of the WTO and the GATT it replaced though was to avoid tariffs and protectionalist spiraling tariff wars such as that which occured in the Great Depression. Tariffs had been the primary means of controlling international trade for several centuries prior to WW2. Since so much about both world wars was caused by competition for access to raw materials and markets that was kind of a big deal back in 1947 or whenever it was that the GATT was created. The EU is another very direct result of this issue, it started as a tariff free zone on coal and steel production in Europe, the European Coal and Steel Community or ECSC, primarily concerned with access to the coal of the Saar. That sure spiraled!

The problem is the WTO was never really setup to deal with non economic factors like protecting wildlife for the sake of... protecting it, nor has it ever dealt well with disputes between economies that are are not equally developed. And its not a universal agreement even between member states, its had multiple rounds of revisions, all on a very protracted basis and linked to other trade talks, and generally been a nightmare on that respect. But what do you expect when you apply basically 'UN' style logic to the utterly anal details of something as dynamic as global trade? It works much better when the subject is 'steel production by tonnage' then anything like this.
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Re: WTO rules Dolphin-Safe Tuna labels illegal under trade agreements

Post by bilateralrope »

I'm going to ignore the environmental angle as I think others can cover it better than me. If the WTO is unhappy about labelling products with "we don't contain x" where x is dolphin, what happens when x is something that is harmful to humans ?

What if the x is only harmful to people allergic to it ?
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Re: WTO rules Dolphin-Safe Tuna labels illegal under trade agreements

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bilateralrope wrote:I'm going to ignore the environmental angle as I think others can cover it better than me. If the WTO is unhappy about labelling products with "we don't contain x" where x is dolphin, what happens when x is something that is harmful to humans ?
That's not technically the same thing, is it? A fishing boat that accidentally kills a pod of dolphins but throws the carcasses overboard might sell "dolphin free" fish, without being "dolphin safe."
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Re: WTO rules Dolphin-Safe Tuna labels illegal under trade agreements

Post by Thanas »

This is a shame. The USA has some of the best marine protection laws and one of the most intelligent fisheries management there is, way better than what the EU manages in maritime protection. To see that potentially undermined by this is just bad.
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Re: WTO rules Dolphin-Safe Tuna labels illegal under trade agreements

Post by Sea Skimmer »

bilateralrope wrote:I'm going to ignore the environmental angle as I think others can cover it better than me. If the WTO is unhappy about labelling products with "we don't contain x" where x is dolphin, what happens when x is something that is harmful to humans ?

What if the x is only harmful to people allergic to it ?
To be clear, the WTO doesn't actually care, its not an investigating body in that way. It exists to handle disputes between national level governments and the EU, the WTO does nothing until someone brings a case to it. Usually such cases are bundled together baskets of issues, as nearly any complaint brings a counter complaint.

The 1994 revision to the GATT which created the modern WTO does allow for protection of the environment as a valid reason to restrict trade. However it is not very detailed on the subject. The enabling agreements and legal precedents for food safety are much more extensive.
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Re: WTO rules Dolphin-Safe Tuna labels illegal under trade agreements

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Can't the U.S. government just flip Mexico the bird and continue its import ban? Let Mexico whine.
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Re: WTO rules Dolphin-Safe Tuna labels illegal under trade agreements

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Enigma wrote:Can't the U.S. government just flip Mexico the bird and continue its import ban? Let Mexico whine.
Yes and no. If they give the metaphorical finger to the ruling, then the WTO would authorize Mexico to levy punitive tariffs, the last big one of these I remember was the Steel Tariff nonsense that W pulled, the EU chose to target industries in swing states, until the policy got reversed.
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Re: WTO rules Dolphin-Safe Tuna labels illegal under trade agreements

Post by Gaidin »

So the diplomatic nutshell is the fan tends to be on so you might not want to throw actual shit.
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Re: WTO rules Dolphin-Safe Tuna labels illegal under trade agreements

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Gerald Tarrant wrote:
Enigma wrote:Can't the U.S. government just flip Mexico the bird and continue its import ban? Let Mexico whine.
Yes and no. If they give the metaphorical finger to the ruling, then the WTO would authorize Mexico to levy punitive tariffs, the last big one of these I remember was the Steel Tariff nonsense that W pulled, the EU chose to target industries in swing states, until the policy got reversed.
But what kind of damage can Mexico do to the U.S.? Threaten to dry up the availability of cheap labor?
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Re: WTO rules Dolphin-Safe Tuna labels illegal under trade agreements

Post by Gerald Tarrant »

Enigma wrote:
Gerald Tarrant wrote:
Enigma wrote:Can't the U.S. government just flip Mexico the bird and continue its import ban? Let Mexico whine.
Yes and no. If they give the metaphorical finger to the ruling, then the WTO would authorize Mexico to levy punitive tariffs, the last big one of these I remember was the Steel Tariff nonsense that W pulled, the EU chose to target industries in swing states, until the policy got reversed.
But what kind of damage can Mexico do to the U.S.? Threaten to dry up the availability of cheap labor?
So first off trade with Mexico is in the 100's of billions of dollars range, that's a lot of cross-border business. The last time I remember retaliatory tariffs being authorized they were for up to 2 billion, but when the EU got the right to do that, they chose to target specific industries. What that means is that the trade action isn't going to do something to the U.S., they're going to do something to some unfortunate businesses in the U.S. So whatever hypothetical tariff they chose to levy could cause lay-offs, furloughs, and/or loss of profits.
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