The Tuna-Dolphin Controversy
By Michael Scott, senior scientist with the Dolphin Programme of the Inter-American Tropical Tuna Commission
August , 1998
For more than 25 years, the tuna-dolphin controversy in the eastern Pacific Ocean (EPO) has raged in public debate, courts of law, scientific meetings, the halls of Congress, and international meetings. The issues of the debate have changed greatly over the years. The problem of high mortalities of the 1960s and 1970s have been largely replaced in the 1990s by issues about the recovery of dolphin populations, protection of marine biodiversity, international relations, consumer fraud, and free trade. Recent steps taken by environmental groups, industry, the US government, and other countries, however, give hopes that a legally binding international agreement will be reached to reduce dolphin mortality to insignificant levels.
At the centre of these controversies have been two research and management agencies. The National Marine Fisheries Service (NMFS) conducted the pioneering research on dolphin biology, population status, and mortality reduction, instituted an observer programme to monitor the US fleet, and has been responsible for US management of the dolphin populations in the EPO. The Inter-American Tropical Tuna Commission (IATTC) has been active in the research on tunas and their international management since 1950. In 1978, the IATTC's Tuna-Dolphin Programme was organised to conduct research on dolphins, to reduce dolphin mortality through gear research, fishermen training, and net inspections, to place observers on vessels of the international fleet, and to make recommendations for dolphin conservation. Currently, the IATTC observers accompany all US and non-US purse seiners capable of fishing for dolphin-associated tuna, with the exception of half of the trips made by Mexican vessels, which are monitored by a Mexican national programme.
In the last 10 years, the decline in dolphin mortality has been particularly dramatic (Figure 1). In 1986, when IATTC observer coverage first included the fleets of all countries, the mortality was over 133,000. By 1993, however, mortality had plummeted to 3,605 and has remained low since then (4,096 in 1994, 3,274 in 1995, and 2,547 in 1996). Two major events have been credited by their proponents for this decline: the US "dolphin-safe" policy and the multilateral implementation of the La Jolla Agreement.
The "Dolphin-safe" Policy
In April of 1990, three major US canneries announced that they would no longer buy tuna caught by encircling dolphins. This policy was adopted by the US Congress when it passed the Dolphin Protection Consumer Information Act in 1990 and the International Dolphin Conservation Act in 1992. According to these laws, tuna caught in the EPO is considered "dolphin-safe" if an observer certifies that no dolphins were deliberately encircled (no "dolphin sets"). These "dolphin-safe" sets are made on small tunas associated with floating objects ("log sets") and unassociated tuna swimming at the surface ("schoolfish sets"). Outside the EPO, there is little or no monitoring by observers at sea to determine whether any dolphins were killed while catching the tuna.
One change brought about by the "dolphin-safe" policy has been in the composition of the international fleet fishing in the EPO. Of the 35 large US vessels fishing prior to the announcement, only six now remain. The rest have either moved to the western Pacific, been inactivated, or been sold to foreign companies. The dominant fishing countries are now Mexico, Ecuador, Venezuela, Vanuatu, and Colombia. With the exception of Ecuador, all of these countries have been embargoed by the US; Panama, Belize, Costa Rica, Japan, and Italy have been embargoed as well.
The La Jolla Agreement
In 1992, 10 countries (including the US and Mexico) adopted the Agreement for the Conservation of Dolphins, better known as the La Jolla Agreement, under the auspices of the IATTC. This agreement implemented a conservation programme that, for first time, established international limits on dolphin mortality that would be ratcheted down to less than 5,000 by 1999. They agreed to 100% observer coverage and to an International Review Panel that would review infractions by the fleets and recommend penalties for the countries to impose on their vessels. The dolphin mortality limit is divided among the boats to promote responsibility for performance of the owner, captain, and crew. One remarkable feature of this panel is its transparency, because it includes representatives of environmental groups and industry as members.
Both the proponents of the "dolphin-safe" policy and of the La Jolla Agreement have claimed credit for the dramatic decline in dolphin mortality. These claims can be tested by looking at the trends in the two factors that go into calculating mortality:
Mortality = Mortality per set x effort
The "dolphin-safe" policy attempts to reduce or eliminate the effort, or the number of sets made on dolphins. The La Jolla Agreement attempts to improve the performance of the fishermen and reduce the mortality per set. By looking at the trends in each of these factors in Figure 1, we can see roughly how much each contributed to the decline in mortality. From 1986 to 1996, mortality has declined 98%. The mortality per set declined 97%, while the effort declined 29%. It is clear that that improved performance, rather than the "dolphin-safe" policy, has been the major cause of the drop in mortality.
Despite the "dolphin-safe" policies and US embargoes, dolphin sets are still the most common purse-seine fishing method and the most productive for yellowfin tuna in the EPO. Other fishing countries have developed alternative markets for tuna caught with dolphins, although they have continued attempts to gain access to the US market.
The Declaration of Panama
In 1995, five environmental groups (Greenpeace International, Centre for Marine Conservation, Environmental Defense Fund, World Wildlife Fund, and National Wildlife Federation) grew impatient with the lack of progress in resolving the tuna-dolphin issue and entered into discussions with Mexico. They negotiated an agreement, the principles of which were incorporated into the Declaration of Panama, which was signed by the US and 11 other countries. The Declaration of Panama called on the US to lift its embargoes on tuna from the EPO for all countries participating in the international programme and to redefine "dolphin-safe" tuna to include tunas caught in dolphin sets that result in zero mortality. In return, the other fishing countries would agree to implement a legally binding treaty to 1) institute an international mortality limit of 5,000 dolphins immediately, 2) institute per-stock limits that are even more restrictive and are based on the US Zero Mortality Rate Goal, 3) strengthen the IATTC's role in monitoring dolphin mortality, and conducting research on and managing populations of tunas, dolphins and other marine life, 4) take steps to reduce or eliminate all by-catch taken in the fishery, and 5) maintain oversight of the programme by environmental, industry, and national scientific advisory groups.
Dolphin Population Issues
The basic issue in the tuna-dolphin controversy used to be quite straightforward: dolphin mortality was too high, and dolphin populations were declining. With the dramatic decline in mortality, however, NMFS and IATTC scientists and a panel of the National Academy of Science have all agreed that the current mortality is sustainable. If the conservative management criteria currently applied to marine mammals in US waters were to be applied to the dolphin populations of the EPO, the current low levels of mortality would be below those considered sufficient to allow recovery to optimum sustainable population levels. With the exception of the two depleted stocks, all stocks are already below the Zero Mortality Rate Goal that the MMPA requires US fisheries to achieve by 2001.
Nevertheless, the depleted populations have remained stable since at least the mid-1980s, despite the decline in mortality. One explanation for the lack of an observable recovery is that dolphin populations are thought to grow slowly and the measures of abundance trends are designed to be long-term indicators, but are insensitive to short-term changes. It may take a long time to detect a recovery, particularly because the mortality has been below 5,000 since 1993. An alternative explanation proposed is that the stress that dolphins suffer during encirclement is sufficient to hinder the recovery of their populations. Dolphins undoubtedly are stressed by chase and encirclement, but we still do not know whether the effects of this stress are harmful to the populations or not.
Ecological Issues
In 1988, the IATTC began a study of the non-dolphin by-catch in the purse-seine fishery. It had long been known that setting on tunas associated with logs produced high by-catches of other tuna species, sharks, mahi-mahi, wahoos, billfishes, and other large marine predators. The discard rates of tunas caught in log sets that were too small or too damaged to sell are also very high - about 15 times higher than those from dolphin sets. This study gained particular relevance when the "dolphin-safe" policy was initiated because it demonstrated that "dolphin-safe" tuna can be quite unsafe for other species. We are far from being able to determine, however, what effects these high by-catch mortalities have on the populations of these species and on the ecosystem as a whole. Of particular concern are sharks, rays, and endangered sea turtles, because like dolphins, their population growth rates are low.
"Dolphin-safe" log sets and school sets catch primarily small tunas, and scientific studies have shown that taking yellowfin tuna at a small size would reduce catches by 25-50% from current levels. There are also environmental concerns about the effect of "dolphin-safe" fishing on tuna populations because the yellowfin caught with these methods are typically too small to have reproduced yet. Concern has been expressed by fishermen and environmentalists that the yellowfin population could decline if not enough fish survive to reproduce. We still do not know enough about tuna populations, however, to predict what would happen to recruitment of young fish into the exploited population if all dolphin sets currently being made are switched to "dolphin-safe" sets.
Management Issues
Along with the success of the La Jolla Agreement in reducing dolphin mortality came the fear that the countries would abandon this voluntary agreement because there was little perceived benefit in abiding by it. Embargoed countries warned that, unless US laws were changed, they would no longer abide by the dolphin mortality limits or carry IATTC observers. The likely consequences of such actions would be that dolphin mortality would increase, although without observers we would no longer be able to determine how high it was. Some advocates in the US labeled this warning as "blackmail". Latin Americans have described the US embargo in the same terms.
Critics of the Declaration of Panama also called this an "empty threat" and argued that if Congress refused to ratify it, the countries that fished on dolphins would knuckle under and go "dolphin-safe". They also pointed to the slow pace of enforcement by the countries of infractions determined by the International Review Panel. While some infractions, particularly those involving observer harassment, have been prosecuted, the best one can say is that the judicial process in these countries works no faster than that of the US.
Trade Issues
The issue of international free trade agreements and their effects on national environmental protection laws is currently an extremely controversial one. In the case of the tuna-dolphin issue, the debate centres around the right of a country to control its own market vs. the obligations it has to abide by trade agreements it has ratified. It has potential implications for a number of environmental protection laws that may be challenged by other countries as restrictions on trade. Both Mexico and the European Union successfully challenged the US tuna embargoes before a panel of the General Agreement on Tariffs and Trade (GATT), but did not proceed with these challenges before the full GATT body. If one of the embargoed countries had successfully pursued this challenge before GATT's successor, the World Trade Organization (WTO), it could have been awarded economic damages from the US. The outcome of such a challenge is uncertain as to whether the WTO would rule in favour of the embargoed countries and, if so, whether a backlash would cause the US to withdraw from free-trade agreements such as WTO and NAFTA.
Consumer Issues
The main consumer issue is the definition of what is "dolphin-safe" and what is not. Because most methods for catching tuna (purse-seining, gillnets, long-lining) can result in dolphin mortality and injury, proponents of the Declaration of Panama have argued that the current definition of "dolphin-safe" is misleading because it implies that no dolphins were killed, that such tuna is "environmentally friendly", and that the tuna-dolphin issue has been solved. Virtually no observers are onboard boats outside the EPO to monitor mortality, although Earth Island Institute has representatives on shore that certify that the tuna was caught without dolphin mortality. Because tuna caught outside the EPO is not observed at sea, these proponents argue that dolphins are likely killed in supposedly "dolphin-safe" trips. This is not, they argue, what consumers have in mind when they read "dolphin-safe" on the label of a tuna can. Of the "dolphin-safe" tuna entering the US, less than 13% of the tonnage comes from observed trips in the EPO; the rest comes from unobserved trips from the rest of the world
Critics of the Declaration of Panama have admitted that "dolphin-safe" does not mean that no dolphins were killed when the tuna in the can was caught, but they oppose changing the definition to include tuna caught in dolphin sets in which an observer has certified that had zero dolphin mortality. They argue that the harassment of dolphins due to encirclement is not what a consumer buying "dolphin-safe" tuna has in mind either.
Summaries of the Opposing Arguments
Opponents of the Declaration of Panama, such as the Earth Island Institute or the Humane Society of the United States, argued that 1) it is a retreat from the "dolphin-safe" policy, 2) the by-catch issue is a phony one, 3) the potential stress of encirclement may be harming the dolphin populations, 4) allowing "dolphin-safe" tuna to be caught by encircling dolphins would constitute consumer fraud, and 5) infractions under the voluntary La Jolla Agreement are not being enforced. They condemned the environmental proponents of the Declaration of Panama for selling out the dolphins.
Proponents, such as Greenpeace or the Centre for Marine Conservation argued that 1) failure to ratify the Declaration would likely result in other countries walking out on the La Jolla Agreement, thus increasing dolphin mortality and destroying the IATTC observer program, 2) the current "dolphin-safe" label promotes fishing with large by-catches of other species, thus putting the ecosystem at risk, 3) the more-restrictive dolphin limits of the Declaration would make management more consistent with US policy, 4) the gains made under the voluntary La Jolla Agreement would be locked into place through national legislation by all the participating countries, and 5) the current "dolphin-safe" definition is consumer fraud because it includes tuna caught with methods known to kill dolphin and without observers onboard. Greenpeace has responded to attacks about "selling out" by pointing out that Greenpeace's policy forbids accepting corporate money, unlike the Earth Island Institute which accepts money that comes from the tuna industry.
Congress Changes US Law
In mid-1997, the International Dolphin Conservation Program Act was passed by Congress. This bill was hotly debated until a compromise was reached. Once an international agreement is in place, the US embargoes would be lifted, the total and per-stock mortality limits would become legally binding, and the emphasis of management and research would be broadened to include by-catch species other than dolphins. The decision to redefine the "dolphin-safe" label would be delayed, however, until preliminary studies on the status of dolphin populations and on the effect of stress due to encirclement are conducted. In 1999, the Secretary of Commerce and the NMFS will provisionally determine whether encirclement has a "significant adverse impact" on depleted dolphin populations. If no adverse impact is found, then the "dolphin-safe" label will be provisionally redefined to include sets in which dolphins are encircled but in which all are released alive. If further studies continue to show no effect, the redefinition would become permanent.
As a result of the passage of this law, the interested nations began negotiating a detailed international agreement that would implement the Declaration of Panama in a series of formal and informal meetings in 1997-98. Such an agreement was hammered out and it is scheduled to be signed in May, 1998 and will enter into force once it is ratified by four nations. That would mark the first time that countries participating in the purse-seine fishery have agreed multi-laterally to legally bind themselves to reducing dolphin mortality, to have it monitored by an international observer program, and to broaden the management emphasis from just dolphins and tunas to include all species in the ecosystem that are affected by the fishery.