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WTO Panel Will Hear Mexico’s Complaint In Tuna-Dolphin Case, US Objects

The WTO’s Dispute Settlement Body agreed to establish a panel to hear Mexico’s complaint against US rules on ‘dolphin-safe’ tuna at its meeting on 20 April. The move drew criticism from Washington, which argues that the case should be adjudicated in the dispute settlement system set up under NAFTA, not the WTO.

The establishment of the panel is just the latest chapter in a dispute that dates back to the early 1990s. At issue in the case is Washington’s refusal to allow Mexican tuna to be certified as ‘dolphin-safe’ because the country’s fishermen are allowed to use encircling, or ‘purse-seine’, nets, which often trap dolphins along with the fish.

But Mexico contends that its fishing practices are sustainable and comply with the guidelines accepted by the Inter-American Tropical Tuna Commission (IATTC), of which the US is a member. Mexico argues that the US restrictions violate several WTO rules, including national treatment and most-favored nation obligations, and create unnecessary obstacles to international trade. Thanks to its inability to label its tuna as dolphin safe in the US market, the country claims that more than a third of its tuna fleet has been forced to shut down.

In October of last year, Mexico made an official request for consultations with the US, the first step of the dispute settlement process at the WTO. 

But the last week’s establishment of a dispute panel to hear the case indicates that those consultations failed to bring about a resolution.

Washington is clearly unsatisfied with how the case is progressing. In its official statement at the 20 April meeting of the DSB, the US said that it “deeply regrets” Mexico’s move to request a DSB panel, and urged the country to reconsider its position. The US delegate argued that the case should be dealt with at the regional level, in a panel set up under the North American Free Trade Agreement, not in the multilateral WTO.

The US delegate argued that, in NAFTA’s Article 2005(4), the parties agreed that cases concerning the protection of the environment, or the health of humans, animals or plant life “would be heard - at the responding party’s option - solely under the NAFTA’s dispute settlement procedures.”

”This dispute meets the criteria set out in that NAFTA provision, and the United States has the right to have this dispute considered under the NAFTA,” the US delegate said.

But Mexico said it was determined to have the case heard at the multilateral level.

”This controversy has important multilateral implications that should be resolved at the WTO,” the Mexican delegate said at the meeting. “Many countries have informally indicated their wish to participate in or to follow the dispute, something that would not possible under the NAFTA. Mexico believes that the substantial concern that this dispute has generated at the international level must also be taken into account.”