US Tuna Ban May Snag Trade Talks With Mexico

MEXICAN officials are reacting angrily to an Oct. 10 United States embargo on tuna. Not only is it souring trade relations with Mexico, but a secondary ban to go into effect in December may also rankle Japan and European nations as well.

The embargo, required by the US Marine Mammal Protection Act, revised in 1988, forbids the sale of tuna in the US if a certain number of dolphins are killed in the fishing process.

What bothers Mexican officials is that the US, by virtue of its market size, can single-handedly force a poor nation to comply with costly ecological standards set by the US Congress.

``It seems totally unjust when the US Congress makes laws which apply to third countries and the use of their own resources. How would you feel if Mexico made law for the US?'' asks Clara Jusidman, Mexico's undersecretary of fishery development. ``It seems contrary to the spirit of open markets the US is promoting.''

International ecological standards should be set in international forums, Ms. Jusidman argues.

For example, Mexico has been working on a plan since the beginning of the year for the protection of all species captured incidentally during fishing. It will push its plan on Nov. 19 at the Latin American Organization for the Development of Fisheries in Bolivia.

Jusidman points out that the dolphins being killed are not considered ``endangered'' species. But the US Marine Mammal Protection Act does provide protection to species deemed depleted below ``optimal'' levels.

She says that Mexico has reduced its dolphin kill rate by 70 percent over the last four years. ``If we're really talking about protecting dolphins, we need more evidence that the Mexican fleet is causing serious damage,'' says Jusidman.

The perception here is that this embargo is not ecological but economic. Based on the Law of the Sea Treaty, in 1980 Mexico declared its 200-mile economic zone off limits to foreign fleets. It has since built up the second-largest and most-modern tuna fleet in the world. It's become a valued source of foreign currency and jobs for some 3,000 families.

Now that Mexico's fleet is big enough to take market share from the US industry, claim officials, protectionist barriers go up.

Actually, even without the US law, Mexico may find itself selling to a shrinking US market. In April, the three largest US tuna canners - with some 80 percent market share - Starkist, Chicken of the Sea, and Bumblebee - declared they would only sell ``Dolphin Safe'' tuna.

But it is not just losing the US market that hurts. (Sales to the US comprise 3 percent now, but were about 15 percent in years past). The major blow will come early next month, when Mexico may lose most of its tuna export markets. Sixty days after the initial embargo, US law requires a secondary ban on countries buying Mexican tuna and reexporting it to the US.

Mexico exported some 84,000 tons of tuna last year to canneries in Italy, Japan, and France.

Ecologists say the tuna ban has nothing to do with protecting the US tuna industry. ``We're not saying, `Let's get tough on developing nations.' We've gone to the mat to get the US out of the dolphin-killing business,'' says David Phillips, executive director of Earth Island Institute. ``But we shouldn't allow foreign fleets to get away with weaker standards.''

Since the late 1950s, the US fleet fishing in the Eastern Tropical Pacific (the only place where dolphins swim above schools of yellow-fin tuna) has resulted in 6 million dolphins killed, an 80 percent reduction in the estimated population, according to Greenpeace.

Dolphins are air-breathing mammals which can drown when trapped by the purse seine nets used to catch prized yellow-fin tuna.

Earth Island, a San Francisco-based environmental group, has taken the US Commerce Department to court several times in recent months to uphold the Marine Mammal Protection Act.

The tuna embargo was first put into place by a court order on Sept. 7 against Mexico, Panama, Venezuela, Ecuador, and Vanuatu. The Commerce Department lifted the embargo against all nations except Panama less than a week later. Later, when Panama agreed to stop all dolphin killing, its ban was lifted.

But on Oct. 12, San Francisco District Court Judge Thelton Henderson ruled that the figures used to justify the lifting of the ban against Mexico were inadequate.

The law states foreign countries cannot have a dolphin kill in 1989 of more than two times the US fleet's kill. And no more than 15 percent of the total number killed can be the Eastern Spinner Dolphin. Mexico exceeded the 1989 limits.

There is a provision to allow lifting of the embargo if a country meets the standards in the first six months of the following year, says Charles Fullerton, southwest regional director of the US National Marine Fisheries Service. On this basis, the Commerce Department lifted the embargo.

But Judge Henderson reinstated the embargo, retroactive to Oct. 10, saying full-year figures must be used.

The Bush administration has assured Mexican officials it is doing everything it can to lift the embargo. The US Justice Department requested a temporary stay of Judge Henderson's decision. If the Justice Department doesn't win this appeal, the tuna embargo could be a source of embarrassment to President Bush in his visit to Mexico later this month. It could also become an issue in the free-trade negotiations officially starting next year. And Mexico's fleet is likely to be in hot water again next year.

US law reduces Mexico's allowable dolphin kill this year to only 1.25 times the US dolphin kill. And US kills will be down sharply from the 13,500 killed 1989.