A Tale of Tuna and Whales

A Tale of Tuna and Whales

By David H Feldman

The Baltimore Sun, December 28, 2000 (A13)

Japan again has roiled the waters of international diplomacy with the departure in late November of a whaling fleet headed for a hunting expedition in the Antarctic. In September, a fleet returned from the northern Pacific with a catch that included forty-three Bryde’s whales and five Sperm whales. The International Whaling Commission (IWC) considers both species to be endangered. . As usual, the U.S. response includes a threat of trade sanctions. The President will decide shortly whether to impose trade measures against Japan under the Pelly Amendment to the Fisherman’s Protection Act of 1967. This inadequate response will likely save no whales. Instead it will do further needless damage to the already weak public image of the World Trade Organization (WTO).

The Pelly Amendment permits trade sanctions if the President determines that foreign fishing practices diminish the effectiveness of an international fishery convention. Yet the amendment clearly states that the penalties cannot contradict U.S. obligations under the General Agreement on Tariffs and Trade (now the WTO). This is where the tuna enters our story.

In a 1991 report that outraged environmentalists, a GATT dispute resolution panel concluded that the U.S. could not impose restrictions on imports of Mexican tuna despite the Mexican fleet’s use of dolphin-killing nets. So long as the product met U.S. health standards, the production process was beyond the reach of U.S. trade policy. Without some form of process-product distinction, countries would be free to impose trade restrictions unilaterally whenever foreign standards differed from their own. No rules-based trade system would survive the likely flood of protectionist abuses. This issue receded, in part because sellers discovered the market power of "dolphin-safe" labeling.

In a more recent decision, the WTO backpedaled slightly and affirmed the right of nations to protect endangered species so long as all foreign and domestic producers receive equal treatment. We could, for instance, ban imports of shrimp from any nation whose trawlers fail to use turtle excluder devices, provided our own fleet faces the same restrictions and no special exemptions are offered to anyone. Alas for the endangered whales, they aren’t the byproduct kills of some other commercial catch.

If the United States were to impose discriminatory duties on unrelated Japanese products, Japan has said it would pursue a claim against the United States, and the outcome isn’t in much doubt. This leaves few trade weapons to affect Japan’s behavior. One option under consideration would have us test a range of Japanese imports to ensure that they contain no trace amounts of whale oil. Aside from the tiny economic impact on any important Japanese industry, testing as a form of harassment is likely to land the United States in the dock as well.

Unlike the IWC, whose only enforcement mechanism is moral suasion, WTO decisions have much greater standing in international law. If we want the public to view that law with respect, we should not misuse it carelessly. Carefully crafted solutions to global environmental problems may one day be grafted onto the WTO structure, but that must be a subject for international discussion, not unilateral action. For now, if the United States feels strongly that the ban on commercial whaling must be maintained, then it ought to work cooperatively with likeminded nations to craft a coordinated diplomatic response. On the other hand, if we are too polite to play diplomatic hardball with friends then we should leave the job to Greenpeace.

If public threats of trade sanctions induce Japan to back down, so much the better, but in this international game of chicken I see no need for Japan to blink first. They have as clear an understanding of international trade law as we do. I suspect the outgoing Clinton administration will feel compelled to act, yet when Washington finally makes good on its weak threats the most likely outcome is another needless tarring of the WTO with an anti-green label. I abhor Japan’s unwillingness to retire its small commercial whaling industry, and its claim of scientific necessity for the hunt is specious beyond belief. But an American policy response that saves no whales, renders the existing whaling convention moot, and diminishes public respect for the WTO is a strikeout indeed … unless, of course, you’re one of the Seattle protestors.

David H. Feldman is a professor in the Department of Economics, College of William & Mary.