One Fish, Two Fish, Red Fish . . . No Fish

By Hudson Kingston

In a day and age when green eggs and ham seem like the rule rather than the exception it is rare to eat food that was hunted down and killed. Statistically speaking modern people no longer hunt, and it is not like the grocery stores are full of venison that is hunted by professional snipers. Nevertheless, the fishing industry is still a hunter/gatherer profession. Though the Magnuson-Stevens Fishery Conservation and Management Act may use the word “harvest”, the world’s supply of fish is a natural resource that we usually cannot grow. We can only avoid not taking too much.

Tuna is a special case. It is new to the world diet and consumption rose exponentiallythrough the 20th century. Given the demand, supply has begun to dwindle although fleets using what could be described as advanced military technology can net 3000 metric tons in 10 days. As with any war, it is nice to have a few ground rules to minimize collateral damage. Until recently the United States had one such principle: do not fish tuna in a way that kills a lot of dolphins. Dolphin safe tuna is a technological fix, and there are plenty of successful fishermen out there who catch their thousands of metric tons of endangered tuna without getting excessive dolphin bycatch.

Unfortunately the WTO disliked that policy – an appellate body decided in mid-May that merely labeling tuna as “dolphin safe” was too much of a restraint on trade and ran afoul of their agreements. This follows a history of the organization finding fault with U.S. rules to keep dolphin-killing tuna off the market. The WTO had already deemed the national ban on such products to be an unfair restriction on trade, this is just a further rollback. What it means is that American consumers are now truly unable to effectively avoid a product they do not want.

There are two lessons one can glean from this decision. The first is about the inadequacies of the WTO dispute resolution system. In the original tribunal that overturned the labeling requirement, the judges were from Singapore, Chile, and Switzerland. Of those three, one is a fully urbanized city state, one is a landlocked mountainous region and only Chile has a fishing industry to speak of. So we’re 1/3 for the judges even thinking about this issue in terms of national interest. None of them are democratically elected and none of them live in the U.S. The proceedings are closed to the public and no outside organizations are allowed to contribute amicusbriefs to explore non-economic impacts. Dislike Citizens United all you want, at least the Supreme Court has to live with the same political ads you do, while the WTO judges have no immediate personal or national stake in their judgment.

The appellate body went even further and overruled the original finding that protecting dolphins was a valid policy goal in the first place. The decision is a stark example of how  — to paraphrase Justice Jackson — appellate bodies are not final because they are infallible, but infallible only because they are final.

Second lesson, perhaps the categorical imperative one should take away from this, is that now is a good time to stop eating tuna – you will certainly do the ocean a favor, and personally ingest less poisonous mercury as a result.

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