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04/19/94

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Tuna fishing controversy a challenge for future NAFTA commission

STANFORD -- A U.S. trade embargo on Mexican tuna is an illegal barrier to free trade, according to an international tribunal, but it is necessary enforcement of a domestic environmental law, according to a U.S. district court.

How disagreements such as this can be resolved under the North American Free Trade Agreement was the subject of a symposium held at Stanford University on April 5. Sponsored by Stanford's North America Forum, it brought together lawyers, politicians and environmentalists from Mexico and the United States. Clint E. Smith, executive director of North America Forum, and Albert Utton of the University of New Mexico School of Law co-chaired the meeting.

When the dust settled, conference participants agreed on one point: International environmental issues are solved best when nations agree to work together. The best method for promoting their cooperation was not as clear cut, however.

Mexican Ambassador Alberto Szekely voiced his anger at the 3- 1/2-year-old tuna embargo, which he sees as an attempt by Mexico's northern neighbor to impose its will on Mexico.

U.S. environmentalists attending the meeting, however, said that the United States is merely protecting dolphins killed in the process of tuna fishing for U.S. markets, and that the nation has the right to protect marine mammals under its own domestic law.

The United States embargoed the import of Mexican tuna in September 1990, despite a ruling by an international tribunal for the General Agreement on Tariffs and Trade that the embargo was a violation of international trade law.

The embargo began as the result of a U.S. district court ruling requiring the U.S. government to enforce the 1972 Marine Mammal Protection Act, a U.S. law that makes it illegal to harass or kill marine mammals. Earth Island Institute, an environmental organization, brought the lawsuit after most U.S. yellow-fin tuna fishing boats had re-flagged in other countries.

Mexico has not attempted to use appeals courts to resolve the conflict between the two court rulings, Stanford's Smith said. It is hoping instead that the new environmental dispute resolution commission of the North American Free Trade Agreement will provide a framework for regional decision-making.

The trade agreement, ratified by Congress late last year, includes a side agreement on the environment, which calls for the United States, Canada and Mexico to set up a regional environmental commission. Leaders of the three nations must agree on an executive director and appoint their Cabinet-level and other representatives to the commission before it becomes operational.

Participants in the Stanford conference debated whether unilateral actions, such as the U.S. tuna embargo, were necessary steps that set the stage for multilateral decisions by the regional commission or whether they are barriers to further international cooperation.

"Every time the U.S. abandons the track of international cooperation, we have a big controversy," Mexico's Szekely said. The United States has an obligation to its international treaties, such as the General Agreement on Tariffs and Trade and the North American Free Trade Agreement, he said, that supersedes its domestic law.

But Hilary French of Worldwatch Institute said unilateral environmental actions put pressure on nations to multilaterally discuss environmental problems. "We have a responsibility as such large consumers to ensure how products are produced," French said.

David Phillips of Earth Island Institute and Judge R. Kenton Musgrave of the U.S. Court of International Trade also disagreed with Szekely. "Not only do we have the right [to uphold domestic laws]," Phillips said, "we have a moral responsibility."

Musgrave questioned whether the U.S. government can legally ignore domestic laws, even when international tribunals rule them invalid.

"I personally think we need to explore the issue of a new constitutional amendment if we are going to have international tribunals dictating domestic law," Musgrave said.

A history of resentment

The tuna fishing conflict between the United States and Mexico dates back to the 1970s, when Mexico and some other nations attempted to extend their exclusive fishing zones to 200 miles off their coastlines. The United States responded with an embargo that was placed on Mexican tuna from 1980 to 1986.

Previously, fishing rights zones had been limited to a 50-mile range, with waters outside that range being ruled by the ancient laws of the high seas.

Yellow-fin tuna migrate along the coastlines, tending to stay within a few hundred miles of shore, so the larger exclusive fishing zones effectively closed U.S. fishermen out of the vast majority of tuna schools in the eastern tropical Pacific, an area that extends from San Diego south to Chile. About 90 percent of the tuna boats fishing for yellow-fin tuna were U.S.-registered boats at the time.

Mexico was willing to discuss the issuance of a fishing permit to the United States, Szekely said, but the United States preferred to go by quotas set by the Inter-American Tropical Tuna Commission. When U.S. boats were seized by Mexico and Costa Rica for fishing inside their 200- mile limits, the United States embargoed Costa Rican tuna, and later tuna from Mexico.

In 1972, another variable was introduced into the already complicated equation. Congress passed the Marine Mammal Protection Act, which made it illegal to harass or kill marine mammals.

Large yellow-fin tuna in the eastern tropical Pacific, unlike skipjack or juvenile yellow-fin, all school under large groups of dolphins, for reasons not clearly understood. U.S. fishermen discovered in the 1960s that encircling schools of dolphins with large purse-seine nets could greatly increase their catch.

Purse-seine fishing involves encircling a school of fish and dolphins in large nets that can extend out for a mile and sink 300 feet below the surface. Explosives, speed boats and helicopters are used to herd the dolphins and tuna into the nets. Large power winches are then used to pull the nets in, and dolphins that are caught either slowly drown or are crushed in the lines being pulled in by the winches. Presently, dolphin deaths have been reduced by actively herding the dolphins back out of the nets.

Initially, little was done by the U.S. government to force its own tuna fleet to follow marine mammal protection regulations. According to research by California Deputy Attorney Stephen Boreman, the American Tuna Association fought penalties. Eventually, Boreman said, many boats in the U.S. fleet re-flagged in other countries, thereby avoiding the law.

In 1989, Earth Island Institute sued the U.S. government for not enforcing the act and won, prompting the new embargo on Mexican tuna. At the time of the lawsuit there were no tuna boats left flying the U.S. flag, and Mexico had taken over the majority of purse-seine tuna fisheries.

The embargo raises the issue of "historical equity," said Diana Hurwitz, a Stanford graduate student who is currently writing her master's thesis on the North American Free Trade Agreement and the tuna- dolphin controversy. "After the United States slaughters some 385,000 dolphins in a year, while the rest of the world kills 50,000, they turn around and tell other nations to stop," Hurwitz said in an interview.

Since the late 1980s, the number of dolphin deaths has been reduced dramatically, according to conference participants. In 1992, less than one dolphin per tuna net set was killed, for a total of 9,000 dolphins killed in the eastern tropical Pacific, and the species is not viewed as endangered by the scientific community. The Mexican government and representatives of the Inter-American Tropical Tuna Commission think it is time for the embargo to be lifted.

Many U.S. environmentalists disagree, seeing 9,000 dolphins killed per year as 9,000 too many.

International law and the tribunals that enforce them recognize the right of nations to bar the import of foreign goods that threaten the health and safety of their citizens, Stanford's Smith said. The law, as construed by world courts, views national laws such as the Marine Mammal Protection Act, however, as a non-tariff barrier to free trade, he said.

Many of the conference participants expressed hope that the North American Free Trade Agreement can usher in an era in which multilateral commissions can resolve conflicts between environmental protection and trade. NAFTA is "the first significant regional trade agreement to address environmental concerns in a way designed to create mechanisms, such as the environmental commission, to deal with issues of concern to environmentalists and public policy makers," Smith said.

"But we are only at the beginning of the process; now the leadership in the three countries must demonstrate their commitment to the North American environment by ensuring that the commission is effectively led and staffed."

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lid, INTL LatAm, LAW tuna

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