A WTO Safe Harbour for the Dolphins - The Second Compliance Proceedings in the US – Tuna II (Mexico) Case

After almost three decades, the dispute between Mexico and the US on tuna fishing operations and dolphins protection has finally been resolved in the multilateral trade system. Disagreements about access to the US market for Mexican tuna technically date back to the early 1930s and have resulted in many reports crossing both the GATT 1947 and the WTO systems. This paper examines the latest instalment of that long history: the final second compliance reports1 on the 2008 WTO case filed by Mexico against the US complaining that the requirements for tuna to be labelled as dolphin-safe on the US market discriminated against Mexican producers. These requirements were more stringent for tuna fished in the Eastern Tropical Pacific Ocean (ETP) where the association between dolphins and tuna is particularly high and where Mexican vessels operate, thereby limiting Mexican access to the US tuna market. The targeting of the ETP was claimed problematic because scientific evidence showed that tuna fishing also presented some risks to dolphins outside of the ETP. After a first amendment in 2013 was still found to be unjustifiably discriminatory against Mexico, the US enacted a rule change in 2016 which was finally considered compliant with WTO rules. The change notably consisted of new administrative mechanisms to guarantee the dolphin-safe practices of tuna fished outside of the ETP. According to the WTO’s second compliance reports, the difference in the stringency of certification requirements for fishermen in and out of the ETP is now calibrated with the risk that tuna fishing poses to dolphins in each region, and the new rule thus adequately achieves the twin goals of protecting dolphins and informing consumers. Regarding the environmental objective, we find that the label was indeed motivated by the need to protect dolphins and the 2016 rule change does grant additional protection to the mammals. However, the WTO adjudicators should have accepted the challenge to qualify the US Dolphin-Safe labelling scheme under the principle of sustainable development, also contemplated in the Preamble of the WTO Agreement. With respect to consumer information, while the label does require more accurate information about dolphin protection, we argue that with no change to the appearance of the label or an informational campaign, the improved credibility of the label may hardly be passed-through to the average consumer and is therefore unlikely to change consumption decisions. This paper examines the effects of the new rules for the competitiveness of Mexican tuna producers on the US market. While theoretically the rule improves access for Mexico by imposing a higher burden on its competitors, Mexican tuna producers have responded to this dispute by diversifying their export destinations rather than changing their methods to increase their US market share. Finally, we also examine the fact that in failing to support the first-ever decision to grant partially open panel meetings, the Appellate Body missed an opportunity to reinforce the transparency of the WTO system.