FUNDATUN reaction to attacks of
Earth Island Institute to
IATTC and AIDCP
Agreements
Arnaldo
Badillo R.
Carlos Giménez B.
One
cannot be less than surprised by the boldness of an
organization that openly summons the consumers to ignore, in
its own territory, U.S. laws: the "International Dolphin
Conservation Program Agreement" Convention (AIDCP, 1999,
APICD in Spanish). Moreover this Agreement constitute
national law in TWELVE countries that fish in the Eastern
Pacific Ocean. The Earth Island Institute Web page (EII,
2005)
openly states the following1:
"Earth
Island Institute (EII) wishes to call the attention of
consumers to the label that falsely tries to protect
dolphins, for which the Department of Commerce of the United
States of the Bush Administration is responsible...
consumers must avoid canned tuna with the label of the
Department of Commerce (see illustration)2”.
In contradiction with the scientific evidence
(“final findings”) supporting the Department of Commerce
reform of the Dolphin Protection Consumers Information Act (DPCIA,
1991), EII calls to ignore this legislation and its
supporting agreement (AIDCP): two interesting achievements
that, properly applied, will render an effective
complementary relationship between environmental protection
and international trade obligations.
The attacks of EII to
AIDCP began
when the Agreement entered into effect in February 1999,
confronting in court the Department of Commerce reform and
obtaining a favourable rule against the Commerce
Department in the law suit. Additionally, their attacks to
IATTC and the IDCPA.
Agreements
have increased over time. In 2002, FUNDATUN wrote and
published a technical report as a former reaction to the
arguments of EII once known its International Marine Mammal
Program. The memorandum of D. Phillipe, B. Killian, M.
Berman y M.S. Palmer, on behalf of the International Marine
Mammal Program of EII, to their representatives and
associated firms, highlights the weaknesses of EII
information sources. EII feeds its “monitoring” data bank
with information provided by the Inter-American Tropical
Tuna Commission (IATTC), the international organization of
states having tuna fisheries in Eastern Pacific and,
ironically, the main target of their attacks. The EII
document questioning the multiple efforts to meet the U. S.
“dolphin safe” label by countries having tuna fleets in
Eastern Pacific reveals its intentions and, we assume,
those of their associates, to remain firm in its position
in favour of the original definition of the “dolphin safe”
label. Obviously, the recent decision of the Court of
Appeals refusing the Department of Commerce redefinition of
the label is highlighted, but not mention is made at all of
the AIDCP certification and obligations approved in El
Salvador. The EII document reveals the inconsistencies of
its claimed “monitoring program” when it shows its
disagreement with the decision of IATTC to restrict handing
out of its monitoring performance data only to governments,
ship owners, and captains involved (CC – FUNDATUN, 08 –
2001). Obviously, without that kind of information EII is
not able to claim consistency of its monitoring activity.
Earthtrust3,
another environmental organization in the United States that
promotes buying and selling tuna products not involving
dolphin deaths and that assumes the responsibility of the
“Flipper (Seal of Approval)” ecolabel, has recognized that
their certification requisites to meet tuna protection
standards go beyond those of the Department of Commerce’s (and
AIDCP’s). Those requisites, as extremes for commercial
activity as “Not purchase any tuna from the Eastern
Tropical Pacific except that which is caught by hook and
line”, are perfectly admissible for an ecologist
private program but, contrary to EII attitude, Earthtrust
does not exhibit any pretension for that requisites to
become a governmental trade restriction, being evidently in
contradiction with the Technical Barriers to Trade
Agreement (TBT) of the WTO as technical regulations and
certification standards should not go beyond necessary to
meet their objectives4.
In biological and man-managed processes, sustained zero
outcomes do not exist. Additionally, processes outcomes
always show variability around an axial level or trend (in
our case, in capture of tuna, dolphin and other marine
species). What AIDCP is doing is to maintain the tendency
toward lower dolphin deaths and injuries with the minimal
variation, according to the TBT Agreement of the WTO5.
Even being in disagree with the monitoring program of AIDCP,
Earthtrust, instead of calling to disavowal of the
national legislation, requires from their associates to “participate
in and abide by all terms of the AIDCP monitoring
program for “dolphin safe” tuna as defined in U.S. law (for
tuna sold in the U.S.A.)” .6
AIDCP requires from any private “dolphin safe” logo
or
accreditation program to manage a monitoring
program comparable to AIDCP´s. Neither this “comparability”
requisite nor observance of the preventive statements
avoiding private campaigns to mislead or deceive consumer
perceptions on AIDCP programs are fulfilled by EII, as their
attacks to AIDCP “dolphin safe” eco-label and the
weaknesses of their ex – post monitoring activities show up.
It calls our attention the outspoken version of EII about
its accreditation by a national agency of the ISO 9000
quality seal, in spite of the observed deficiencies in their
monitoring data gathering and processing. EII “rides” on
open-sea data gathered by observers in tuna fleets fishing
in Eastern Pacific. EII collects indirect (ex-post)
information on assumed dolphin deaths or injures in tuna
fleets through “surprise visits to canneries and docks in
order to inspect captains´ logs and other paperwork that
indicate whether or not dolphins were protected according to
the standard”.7 If any monitoring device
deserves recognition by ISO is the AIDCP monitoring program,
one action somewhat neglected by IATTC.
The deficiencies of the governmental
regulation of the market niche provided by the eco-labels in
the United States have been pointed out somewhere else. “The
lack of regulation of this growing market niche probably has
encouraged many unscrupulous companies to use
unsubstantiated (and) vague slogans”8.
According to these references, the U.S. Department of
Commerce overlooks much of the “dolphin safe” tuna of the
market (of the United that the government of the United
States make itself
acquainted with the defense of AIDCP. Otherwise, ¿What is
this agreements useful for if the biggest importing member
of IATTC does not emphasize the defense of a legislative
instrument that represents the best consensual solution to
the most important environment–trade controversy of the WTO?
The alternative to appeal to the Dispute Settlement Body of
the WTO is open again in order to protect the economic
interests of the states having tuna fleets in Eastern
Pacific. In fact, the practical admission by the IATTC tuna
exporting countries of the discriminatory mechanism embodied
in the AIDCP is not representing today a real guarantee for
its “dolphin safe” tuna to access the market of the United
States.
Michel Scott (1998), senior researcher of
IATTC pointed out that of the “dolphin-safe” tuna entering
the market of the United States only 13 % of the tonnage
came from the trips to the Eastern Pacific Ocean, under
observation. The rest came from trips to other parts of
the world receiving also the “dolphin safe” certification of
the U.S. Department of Commerce without subjection to the
same monitoring procedure. This represents an evident case
of trade discrimination against the fleets fishing in
Eastern Pacific. Non-discrimination is a fundamental
principle of the trade multilateral agreements in addition
to the principles of harmonization, transparency and
equivalency of technical regulations and assessment results
embodied in the TBT Agreement of the WTO. All these
principles are fully fulfilled by the monitoring program of
the IATTC. The alleged claims of EII are far from
satisfaction of these requisites of the TBT.
An action deserving a detailed study is that
IATTC affected tuna sectors convert the current character of
the U.S. tuna eco-label, a barrier to trade more than an
environmental protection devise, in a differentiation
instrument based on the quality of tuna products from
Eastern Tropical Pacific, following tastes and needs of the
american and european consumers. The rigorous and
transparent characterization of the quality basis of these
products, as opposed to those of lower quality alternatives,
is the first step of a new strategy to improve the access
possibilities to the big markets.
The design and adoption of a private certification mark9
could be an excellent alternative, if certified by
international standards of quality based in more solid
arguments than those of the EII´s “monitoring” program10.
5
“…less-trade restrictive options, such as more accurate (and
less exaggerated) warning requirements, need to be
explored… (To avoid) unnecessary obstacles to trade, the
Agreement encourages WTO Members to develop technical
regulations and standards that are based on product
performance, rather than design requirements”. In: Motaal,
D. A. (2000). “Overview of the World Trade Organization
Agreement on Technical Barriers to Trade”. Trade and
Environmental Division, WTO.
10
Ibid
