In 1998, after the United States had failed for a decade to meet its obligations under the Declaration of Panama and the Agreement on the International Dolphin Conservation Program (AIDCP), Mexico brought a case against the United States before the World Trade Organization, pointing out that the U.S. policy has one standard for “dolphin-safe” for the Eastern Tropical Pacific (ETP) Ocean and a completely different standard for the rest of the world, including the area where U.S. fleets fish.
In May of 2012, the World Trade Organization (WTO) found that the U.S. policy is discriminatory because it creates an illegitimate distinction focusing on one method of sustainable fishing for tuna in one fishery (the ETP) while disregarding indisputable data and scientific evidence of harm to dolphins that is occurring in the rest of the world. This, the WTO found, undermines the stated objectives of the policy to provide full and accurate information to consumers about harm to dolphins in the capture of tuna bearing the “dolphin-safe” label.
The fact is that, except for in the ETP, the U.S. “dolphin-safe” label does not provide any certification at all about mortalities or injuries to dolphins during the capture of the tuna, even though very significant mortalities do in fact occur. In addition, it does not provide any independent observer certification that dolphins were not encircled to capture the tuna – only the self-certification of economically self-interested captains of fishing vessels.
In its ruling, the WTO said: “Certain environmental conditions in the ETP are unique [but] the risks faced by dolphin populations in the ETP are not.” In fact, the WTO harshly criticized the fact that the current U.S. “dolphin-safe” label does not consider mortality caused by fishing methods outside of the ETP. The WTO noted that “tuna caught in this area would be eligible for the U.S. official label, even if dolphins have in fact been killed or seriously injured during the trip.”