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In Epic WTO v. Flipper Case, Trade Organization Ruling in Favor of U.S. Dolphin-Safe Tuna Labeling Program May Reflect Concerns About Trump Criticisms of WTO

U.S. Gutted Ban on Dolphin-Deadly Tuna After 1991 Trade Case; Today’s Ruling Means U.S. Dodges $163 Million in Sanctions for Voluntary Labels That Replaced Ban – But Mexico Can Appeal Decision

WASHINGTON, D.C. – After two decades of successful trade attacks that led to the gutting of a U.S. ban on tuna caught in a manner that harms dolphins, today’s World Trade Organization (WTO) ruling was a welcome if unexpected shift that may reflect the institution’s response to intensive pressure by the Office of the U.S. Trade Representative to reform the WTO’s dispute resolution process and President Donald Trump’s threats to withdraw from the body, Public Citizen said.

At issue in today’s ruling are voluntary labels that provide consumers with information to enable them to choose dolphin-safe tuna. The labels were put in place after the U.S. eliminated its ban on dolphin-deadly tuna after losing previous WTO cases. Millions in American taxpayer funds have been spent defending attack after attack on dolphin protections at the WTO.

“The WTO is a political institution, so this ruling may be motivated by a sense of self-preservation, given that the administration has spotlighted how WTO tribunals order countries to gut domestic policies based on unaccountable tribunals making up new obligations to which countries never agreed,” said Lori Wallach, director of Public Citizen’s Global Trade Watch. “At another politically fraught moment for the WTO shortly after the 1999 Seattle WTO protests, when a ruling against Europe’s ban on asbestos was seen as substantiating protestors’ claims about the body, a surprise reversal also was issued.” 

Today’s ruling is subject to appeal by Mexico. Public Citizen called on the Trump administration and the Mexican government to include language in North American Free Trade Agreement (NAFTA) renegotiations explicitly affirming the current U.S. labeling program so as to shut down any future disputes after 25 years of trade-pact attacks on U.S. dolphin-safe labeling policies. The initial 1991 tuna-dolphin case, dubbed GATTzilla v. Flipper, instigated environmental and consumer group engagement on “trade” agreements.

Today’s ruling focused on whether a 2016 strengthening of the enforcement provisions of the U.S. dolphin-safe tuna labeling regulations with respect to countries other than Mexico made the policy compliant with WTO rules. The WTO repeatedly had declared that the policy discriminated against Mexico, and that rules that limited exceptions for policies aimed at conserving natural resources or protecting animal life or health did not apply. Most recently, an April 2017 WTO decision authorized Mexico to impose an annual $163 million in trade sanctions against the United States, concluding that 2013 changes to the policy still did not meet WTO rules. The April ruling set the amount of sanctions Mexico could impose after the WTO ruled against the U.S. labeling program in 2011, upheld that ruling on appeal in 2012, ruled in 2015 that the initial U.S. changes to the policy did meet WTO rules and upheld that decision on appeal.

Today’s decision means that the United States will not immediately face the previously authorized $163 million in annual trade sanctions.

The decision is the latest development in an ongoing trade impasse between the U.S. and Mexico on dolphin-safe tuna that started in 1991. The current round of attacks started in 2008 with the WTO repeatedly ruling against the U.S. dolphin-safe tuna labeling program even though it is strictly voluntary and accessible to Mexican fishing fleets should they opt to use dolphin-safe tuna-fishing methods just as U.S., Ecuadorean and other nations’ fleets do. Tuna that does not meet the dolphin-safe standard still can be sold in the United States without that label.

“To make sure that the attack on dolphin-safe tuna ends once and for all, a formal and final settlement of the case safeguarding the policy must be part of NAFTA renegotiations,” Wallach said.

Short overview and background of the case: 1991-2017  

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How Progressives Can & Must Engage on NAFTA Renegotiations

Findings from National Poll

Trade stands out from every other policy issue because Donald Trump’s unhappiness with the status quo is shared by virtually all progressive advocacy groups and nearly all Democratic Members of Congress who are otherwise fighting Trump every day. It is urgent for progressives to engage on trade because Trump has triggered the renegotiation of the North American Free Trade Agreement (NAFTA), which will likely conclude early next year or sooner if the president gives the six-month notice provided for in NAFTA to withdraw the U.S. as a signatory. The president also has the ‘fast track’ authority won by President Obama that guarantees him a vote 90 days after he submits an amended agreement to the Congress, with amendments, Senate filibuster and supermajority voting forbidden.

At a time of great peril for our democracy and deepening public opposition to Donald Trump on many fronts, he wins high marks from voters on handling trade and advocating for American workers: 46 percent approve of his handling of trade agreements with other countries, 51 percent, his ‘putting American workers ahead of the interests of big corporations’ and 60 percent, how he is doing “keeping jobs in the United States.”[1]

The Republicans continue to hold an advantage over Democrats on handling the economy in polling.[2] And frankly, Democrats’ advantage in the generic congressional ballot is not as impressive as it should be (8-point lead among registered voters but only 5 among likely voters), as Democrats in Congress seem focused on everything but economic issues.  The Democrats’ silence on the trade issue this year and in the 2016 presidential election – even though three-quarters of House and Senate Democrats opposed trade authority for the TPP – contributed mightily to Trump’s victory in many of the Rustbelt states and to the Democrats’ current disadvantage on the economy.

Progressives need to communicate that they are fighting for American jobs, for raising incomes and wages and for putting the interests of American workers before corporations who shaped NAFTA and are now using it to accelerate job outsourcing, which our research showed is viewed by voters as the greatest threat to America’s living standards.

Fighting for the right major changes to NAFTA is broadly popular among Trump voters as well as the college educated and diverse Clinton voters who are more conflicted about trade, TPP and NAFTA. Focusing on NAFTA in the right way and calling out Trump on what changes he is really fighting for allows progressives to speak powerfully on the economy, lagging wages and American jobs.

Outsourcing and trade agreements

What Donald Trump knows and all progressives must understand is that for voters, the trade issue is not about trade agreements per se. It is about the outsourcing of good paying American jobs that these agreements facilitate.

What many activists will find most challenging is how little voters dwell on the agreements themselves and how uncertain most of them are about their effects on the economy, jobs and living standards. Even though TPP was debated nationally in the presidential contest and championed by Trump and Obama, only 59 percent of voters in our recent poll could identify it now. In focus groups conducted this summer, Trump and Clinton voters struggled to remember what TPP was all about.

A sizeable number are unsure of NAFTA’s impact: 15 percent unsure on the economy, 20 percent on jobs and 26 percent on whether it damaged the environment.

People do hold strong views, become animated in focus groups, and connect the dots to their daily lives when ‘outsourcing’ is brought up. Nearly 60 percent view ‘outsourcing’ negatively, with nearly half intensely negative; only 11 percent view ‘outsourcing’ favorably, putting it in the same league with Vladimir Putin.[3]  Just hearing the word in focus groups made both non-college educated voters in the Midwest states and college-educated Seattle voters see red: those are “middle income jobs,” companies who outsource are “traitors” and “should be financially penalized.”

It is outsourcing that is at the heart of people’s anger with CEOs and big corporations that pursue profits by shifting investments to places with much cheaper labor costs, without any loyalty to their country, company and employees. That anger unites college graduates and white working class voters: 59 percent of the latter react negatively to outsourcing, and the college voters are almost 10-points more negative.

Progressives’ entry point to the trade debate is not the trade agreement themselves, but the outsourcing that people view as the biggest and growing threat to decent paying American jobs. NAFTA renegotiations give progressives an opportunity to talk about an economy where jobs don’t pay enough to live on, which will improve their standing on the economy, while also advocating for changes to NAFTA and the U.S. approach to trade that can really lead to more, better paying American jobs. 

Beyond partisanship

NAFTA is divisive and polarizing – but progressives hoping to ignore the issue allow Trump to continue to prevail on American jobs. If progressives make ‘outsourcing’ the entry point into the trade debate, they can unite Democrats and Trump voters around effective criticisms of NAFTA and messages demanding Trump deliver major changes.

Our research shows Democratic voters become critical of trade agreements and NAFTA when they realize how corporate special interests are lobbying in secret to include provisions that provide special powers to corporations to sue the U.S. government before tribunals of corporate lawyers over our laws to demand taxpayer money or insert provisions into NAFTA to reverse Dodd-Frank Wall Street regulations. This was also true over the course of the TPP debate, as Democrats and progressives became educated about these very same issues. Our recent research showed that college graduates are more anti-corporate than the white working class – which explains why they react more strongly to an anti-corporate NAFTA message and against Investor-State Dispute Settlement (ISDS) and its corporate tribunals.

Together, a critique of NAFTA for facilitating outsourcing and failing to put American workers ahead of corporations shifts Democrats even more dramatically against NAFTA.

Wide support for changes to NAFTA

Support for changing NAFTA is broad. A 43 percent plurality wants to see major changes to NAFTA, while just 39 percent are looking for more modest adjustments. Even fewer Trump and white working voters are looking for small changes. After hearing criticisms of NAFTA – effectively simulating the national debate on NAFTA that is unfolding – the bloc demanding major changes comes to dominate among minority voters (59 percent), metro residents (57 percent), college graduates (55 percent), and Clinton voters (51 percent) too.  

Getting this strategic context right enables progressives to focus the battle on what changes need to happen. If Trump isn’t really pushing for the kinds of changes that are most important for voters, he could be marginalized by the NAFTA debate itself.

Voters’ Top Priorities for NAFTA Change Not Same as Trump’s

The strongest attack on NAFTA is a change the administration is failing to prioritize – and one that is critically important to the progressive agenda on trade and to progressives speaking about an economy that must produce more better-paying American jobs.

The most convincing argument for major changes says that American workers are losing because NAFTA lacks enforceable “labor and environmental standards so companies can move U.S. jobs to Mexico to pay workers poverty wages” and dump pollutants and “import those products back to the U.S. for sale.” Over 80 percent of Trump voters and over 60 percent of Clinton voters found that a convincing argument against the current NAFTA. But new terms to remedy this do not appear to be at the top of the Trump trade agenda in the leaked stories about the negotiations.

The second strongest critical argument focuses on how NAFTA has facilitated the outsourcing of good “middle class jobs to Canada and Mexico” and continues to do so every week. That was a convincing argument to 85 percent of Trump voters and 61 percent of Clinton voters.

In the next tier are arguments about the safety of our food, which also receives an intense reaction. NAFTA limits our ability to ensure food safety, which is very concerning to 63 percent of Trump voters, 54 percent of white working class voters and 42 percent of college graduates.

College graduates express a lot of concern after hearing about Investor-State Dispute Settlement – or the “special powers” given to corporations to “sue the government over our health and safety laws” for unlimited “U.S. taxpayer money.” This raised concerns among 60 percent of college graduates.

Interestingly, one of Trump’s main critiques – the trade balance - scored lower and had the lowest intensity. The key here is that progressive critiques of NAFTA are the ones that voters find most concerning.

Impact of Messaging

The strongest message that gets to Trump voters, but also rings powerfully true for Clinton voters, focuses on how NAFTA facilitates outsourcing, producing an economy where people haven’t seen a pay increase in years, which will continue to worsen unless NAFTA changes.  Rather than leveling the playing field for us, NAFTA “make[s] it easier for companies to outsource jobs to Mexico” where they “can pay employees less” so since NAFTA went into effect, our wages have “been flat.” It says that major changes are needed to NAFTA or else it will continue to give the “greenlight to corporations to outsource American jobs, pushing down wages for everyone in the US.”

By transforming the trade debate into a big economic argument with outsourcing as the main problem, progressives become the advocates for more American jobs with higher wages and salaries.

After a simulated debate where everyone heard competing arguments, half a trade-outsourcing message focused on the ongoing job loss and wage decline, and half a trade-outsourcing message focused on corporate power and privileges, voters are much more likely to believe NAFTA has been damaging and demand major changes. They are more likely to say it is bad for the economy and jobs.

While the shifts are considerable no matter which argument and message, those who heard about ongoing job losses and wage decreases were much more likely to become convinced NAFTA has hurt their own ability to get good, decent-paying jobs (+21-point shift versus +13 point shift). That is the most important change if progressives are to use the NAFTA debate to improve their credibility on the economy.


[1] This memo is based on a national phone survey of 1,000 registered voters, using 60 percent cell phones, conducted September 30-October 6, 2017 by Citizen Opinion on behalf of Public Citizen. The polling was preceded by six focus groups among white working class Obama-Trump voters in Macomb County, MI and Oak Creek, WI and college educated Clinton voters in Seattle Washington in July 2017.

[2] According to a June 2017 NBC/Wall Street Journal poll of 900 adults nationwide, the Republican Party has a 7-point advantage over the Democratic Party on dealing with the economy (36 to 29).

[3] Vladimir Putin viewed favorably by 15 percent of adults nationwide in a Bloomberg poll conducted July 8-12, 2017.

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As Battle Over NAFTA Investor Protections Heats Up, Trinational Coalition Delivers 400,000 Petitions Demanding Elimination of Corporate Rights and Tribunals

Investor-State Dispute Settlement Becomes Key Measure of Whether NAFTA Renegotiations Will Benefit Working People or Expand Corporate Power

WASHINGTON, D.C. – Growing public opposition to the expansive corporate privileges at the heart of the North American Free Trade Agreement (NAFTA) took center stage as the fourth round of NAFTA talks began today in Washington, D.C. U.S., Mexican and Canadian civil society organizations delivered more than 400,000 petitions demanding that NAFTA’s expansive corporate rights and protections and Investor-State Dispute Settlement (ISDS) be eliminated during renegotiations. [Still photos and video available of delivery event.]

“If you want to know how trade deals like NAFTA have been rigged against working people and our communities, all you need to do is to look at the Investor-State Dispute Settlement process,” said Chris Shelton, president, Communications Workers of America.

“Americans want trade deals that will add new protections for our environment, create American jobs and raising wages, not another corporate giveaway by a phony populist like Trump, said CREDO political director Murshed Zaheed. “If Trump doesn’t use NAFTA renegotiation to eliminate the Investor State Dispute Settlement provision it will further expose his administration as craven crony capitalists masquerading as faux populists.”

“The Teamsters are North America’s supply chain union. With members in long-haul trucking and freight rail, air, at ports and in warehouses, as well as members in manufacturing and food processing, this union has a big stake in trade policy reform,” said Jim Hoffa, general president, Teamsters. “We will be monitoring the modernization of a flawed and failed NAFTA, and fighting to make sure that the new NAFTA works for working families.”

U.S. officials are expected to table a proposal on the controversial NAFTA investment chapter during this week’s negotiations. NAFTA’s investor protections and ISDS make it less risky and expensive for corporations to outsource jobs and empower them to attack domestic policies that protect public health and the environment by going before tribunals of three corporate lawyers who can order unlimited compensation to be paid to the corporations by taxpayers.

Last month, more than 100 small business leaders sent a letter calling for elimination of ISDS in NAFTA. Organizations representing U.S. state legislatures and state attorneys general and hundreds of prominent economics and law professors also have declared opposition to ISDS, as has a group of Republican members of the U.S. House of Representatives. Conservative U.S. Supreme Court Chief Justice John Roberts has warned about the threat of ISDS. But corporate interests are scrambling to defend the controversial regime they use to attack domestic laws and raid taxpayer funds.

While just 50 known ISDS cases were launched in the first three decades of this shadow legal system, corporations have launched more than 50 claims in each of the past six years. More than $392 million in compensation has already been paid out to corporations to date after NAFTA ISDS attacks on oil, gas, water and timber policies, toxics bans, health and safety measures, and more. More than $36 billion in NAFTA ISDS attacks are pending.

“People from the Yukon to the Yucatan are united in demanding an end to NAFTA’s corporate privileges that promote job outsourcing, lower wages and attacks on health safeguards,” said Lori Wallach, director of Public Citizen’s Global Trade Watch. “A NAFTA replacement deal that benefits people and the planet cannot grant corporations powers to skirt our laws and courts and demand unlimited taxpayer compensation from tribunals of corporate lawyers.”

“NAFTA is strewn with handouts to corporate polluters that must be eliminated, starting with the free pass for chronic job offshorers to attack air, water, and climate protections in tribunals of corporate lawyers,” said Ben Beachy, director of Sierra Club’s Responsible Trade Program. “Any NAFTA replacement must stop protecting multinational corporations and start protecting the workers and communities across North America who have endured decades of damage under this raw deal.” 

"ISDS makes big corporations feel safer moving jobs around the globe to wherever workers are the most exploited and environmental regulations are the weakest, and it also puts democratically-enacted public interest laws in jeopardy both at home and abroad,” said Arthur Stamoulis, executive director of Citizens Trade Campaign. "While many changes are needed to make a NAFTA replacement deal work for working families and the planet, if trade negotiators maintain ISDS, we’ll know the NAFTA renegotiation has been hijacked by special interests intent on preserving corporate power.”

"ISDS effectively usurps democratic governance, and makes it impossible for elected governments to create policy that benefits ordinary citizens without the threat of a corporate lawsuit,” said Carli Stevenson, campaigner, Demand Progress. “As we fight to preserve the free and open internet in the United States, we stand with activists worldwide against attempts by any corporation to use trade agreements to make their profits sacrosanct and act against the interests of citizens, workers, and consumers. ISDS should not be a part of any trade agreement."

 “ISDS empowers mega-corporations to attack democratic values, human rights, and environmental protections and force governments to award their corruption and greed with unlimited payments of our tax dollars,” said Matt Nelson, Executive Director of Presente Action. “The reality is clear, forces pushing the ISDS have no loyalty to their governments or the people, only to their pipedreams to rule our public institutions like their own private castles."

“Investor-State Dispute Settlement puts power in the hands of international tribunal that do not have the best interests of workers, public health, and the environment, but rather benefit corporations looking to make a profit or gain more power,” said Patrick Carolan, executive director, Franciscan Action Network. “This is not in line with Catholic Social Teaching and Franciscan values which emphasizes the need for just and fair laws for all people.”

“Big Pharma is already demanding more extensive provisions on intellectual property in NAFTA to extend their market monopolies on medicines even longer. At the same time, it’s also pushing to expand NAFTA’s investment chapter to include intellectual property claims. This would mean pharmaceutical giants could use the system of closed-door tribunals to try to overturn important, long-standing features of a country’s laws on patents or other aspects of intellectual property, in pursuit of yet more profits for the one of the most profitable industries in the world, said Richard Elliott, executive director, Canadian HIV/AIDS Legal Network.

Organizations involved include:


Canadian HIV/AIDS Legal Network

Center for International Environmental Law

Citizens Trade Campaign

Corporate Accountability International

Council of Canadians

CREDO Action

Communications Workers of America

Daily Kos

Demand Progress

Democracy for America

Derechos Digitales

Food and Water Watch Action Fund

Franciscan Action Network

Friends of the Earth

Global Exchange

Good Jobs Nation

Institute for Agriculture and Trade Policy

Interfaith Workers Justice

International Corporate Accountability Roundtable

International Labor Rights Forum

Just Foreign Policy


Machinists Union

Maryknoll Office for Global Concerns

Open Media

Our Revolution

People Demanding Action

Presbyterian Church (U.S.)

Presente Action

Progressive Congress Action Fund

Public Citizen’s Global Trade Watch

Sierra Club



Trade Justice Network (Canada)

United Church of Christ

United Electrical Workers

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