TED Case Studies

US-Canada Salmon Dispute (SALMON)

CASE NUMBER: 59

CASE MNEMONIC: SALMON

CASE NAME: Salmon-Herring Dispute

I. Identification

1. The Issue

This is a case in which Canadian export restrictions of certain types of fish were defended by Canada as a fisheries management tool but opposed by the United States as non-tariff barriers masquerading as conservation measures.

In May 1986, United States fish producers initiated an investigation of Canadian restrictions on some unprocessed herring and pink sockeye salmon exports. Bilateral consultations under the General Agreement on Tariffs and Trade (GATT) failed to reach a solution. Consequently, the United States requested the establishment of a dispute settlement panel. The GATT panel found against Canada's export prohibitions on Pacific roe herring and two species of salmon.

In April, 1989, Canada eliminated those export prohibitions and instead instituted requirements that all Pacific roe herring and five species of salmon be landed in Canada before export, so they could be inspected. The United States disputed the landing requirements before a U.S.-Canada Free Trade Agreement (FTA) panel on the grounds that the new requirement perpetuated the GATT-illegal restriction.

The panel found the landing requirements were inconsistent with the FTA. The United States has urged Canada to implement that finding to eliminate trade restrictions. In February 1990, the United States and Canada reached an agreement on an outline for a temporary settlement of the dispute. Covering a four-year window, Canada allowed pacific salmon and roe herring to be eligible for at-sea inspection and export to the U.S., at a rate of 20 percent in 1990 and 25 percent for 1991-93.

2. Description

On September 3 and October 27, 1986, the United States and Canada met to discuss Canada's ban on exportation or sale for export of unprocessed herring and pink and sockeye salmon. As no agreement resulted, the U.S. asked for an adjudicatory panel. On November 4, 1987, the panel made its findings public.

The restrictions the United States opposed were the core of the 1970 Canadian Fisheries Act. It calls for inspection of any export of Canadian sockeye or pink salmon, food herring, roe herring, herring roe, or herring spawn on kelp unless it has been canned, salted, smoked, dried, pickled or frozen.

The United States argued that these restrictions violated the GATT treaty and asked the panel to strike down the export restrictions. Canada defended the measures as an integral and longstanding component of its West Coast fisheries conservation management, as well as a quality-control step.

While the United States agreed with the goal of conservation, it said the restrictions at hand actually aimed to keep fish-processing jobs in British Columbia that might go to U.S. citizens in the absence of the restraints. By insisting on land-based inspections -- when similar checks could be done on shipboard -- Canada was imposing avoidable time and cost, the U.S. argued. see USCANADA case).

The United States also maintained that Canada's regulations breached Article XI of the FTA, which specifically forbids export restrictions. Canada argued that the unprocessed sockeye and pink salmon and herring were commodities within the restrictions of the article as well as being necessary for the market niche. The United States contested this view by saying the Canadian producers were implying an objective of promoting Canada's export trade at the expense of foreign competitors.

Canada maintained that its export measures were publicly announced and served a range of purposes, including the conservation of the resource. Ultimately, it said, these measures increased overall trade. In addition, the regulation secured that further investment could be made in enhancing the resource base of both salmon and herring stocks.

Canada also argued that salmon and herring were exhaustible natural resources in need of conservation. The conservation regime included many elements such as habitat protection, international agreements, maintenance of sufficient harvesting, and processing capacity to optimize utilization of the species and maintenance of research and information systems. The domestic production controls limited the amount of fish caught and applied to the particular species for which export regulations were in force.

The United States agreed that salmon and herring were exhaustible resources in need of conservation yet insisted that export prohibition could not be viewed as a trade enhancement measure.

The United States felt that there were other reporting methods, already in use on both sides of the border, that were effective in gathering timely and complete catch data. Thus, Canada had other ways to limit catch and account for caught fish. (see UKCOD and CANCOD cases).

The United States responded that no other country applied similar export restrictions on these species or any other species. Instead, they limited their authority to requiring a report of catch in their territorial waters and Exclusive Economic Zones. The selectivity reflected in Canada's export controls indicated the unique concentration of processing jobs in the freezing and canning operations associated with these species. The United States showed evidence that the non-restricted salmon accounted for almost half of Canada's total salmon exports over the past few years. Consequently, Canada's argument that the export restricted species were distinguished by their unique importance in international trade could not be accepted.

Canada maintained that export restrictions assist the conservation effort by allowing public expenditure on salmon enhancement to benefit all of the sectors of the fishing industry. The United States denied the validity and relevance of these justifications by saying that there was little correspondence between Canada's export restrictions and the structure of its enhancement efforts.

The basic issue before the panel was that Canada prohibits the export of certain unprocessed salmon and unprocessed herring. The panel found these export prohibitions could not be considered 'necessary' as defined within article XI. In terms of the need for regulations for the international marketing of processed salmon and herring, the panel found that they were not justified. It also concluded that while a trade measure did not have to be necessary or essential to the conservation of an exhaustible natural resource, it had to be primarily aimed at the conservation of an exhaustible natural resource to have meaning under Article XX. The panel therefore found that the export bans on certain unprocessed salmon and unprocessed herring were contrary to the Articles and suggested that Canada bring its export measures into conformity with GATT disciplines.

Negotiations between the U.S. and Canada have been unsuccessful for years concerning the limits for each other's salmon. These discussions finally erupted in March, 1996 "... when an international mediator from New Zealand resigned in frustration" over differences in views between U.S. and Canada.

3. Related Cases

Sea Fishing Specific

DONUT Case
LOBSTER Case
MAGNUSON Case
TURBOT Case
UKCOD Case
CANCOD Case
IRISH Case

Sea Fishing General

Seafood Cases

Keyword Clusters

(1): Trade Product = FOOD

(2): Bio-geography = OCEAN

(3): Environmental Problem = Species Loss Sea [SPLS] 4.

4. Draft Author:

Amy Craft and Michaelle Burtsin (July 1, 1996)

II. Legal Clusters

5. Discourse and Status:

DISagreement and COMPlete

6. Forum and Scope:

GATT and MULTIlateral

The United States and Canada presented their arguments to the GATT.

7. Decision Breadth:

105 (GATT members)

The salmon and herring case is between the United States and Canada, but the forum used was the GATT (see LOBSTER case).

8. Legal Standing:

TREATY

III. Geographic Clusters

9. Geographic Locations

a. Geographic Domain: PACIFIC

b. Geographic Site: Eastern Pacific [EPAC]

c. Geographic Impact: CANADA

The geographic domain of the species covers the Northern Pacific region, including the inland rivers of Canada and the United States. The geographic activity site is located in the Exclusive Economic Zones (EEZ). The geographic impact is Canada, as well as any exporting nation of unprocessed salmon and herring.

10. Sub-National Factors:

NO

11. Type of Habitat:

OCEAN

IV. Trade Clusters

12. Type of Measure:

Export Ban [EXBAN]

The measure used to institute social behavior was a regulation. This regulation prohibited the export or sale for export of unprocessed herring and pink and sockeye salmon.

13. Direct v. Indirect Impacts:

DIRect

This case has a direct impact because the export of salmon and herring was related to the panel's decision.

14. Relation of Trade Measure to Environmental Impact

a. Directly Related to Product: YES, Fish

b. Indirectly Related to Product: YES, Fish products

c. Not Related to Product: NO

d. Related to Process: YES Species Loss Sea [SPLS]

The measure directly relates to the product in that it effects the export process of unprocessed salmon and herring. However, it can be related to the process of catching, smoking, salting, canning, drying, pickling and freezing herring and pink and sockeye salmon.

15. Trade Product Identification:

FISH

The pink and sockeye salmon are final products that, according to the Harmonized Tariff System schedule, are defined as salmonidae, frozen (excluding livers and roes). The trade codes for this group is 303.10 through 303.29 in the Harmonized System, and 034.21 in the Standard International Trade Classification (SITC), revision three. Herring is also a final product that falls under classification of herrings, sardines, sardinella, brislings, or sprats, frozen (excluding livers and roes). The Harmonized System uses the categories of 303.50 through 303.71 and the SITC index uses 034.24.

16. Economic Data

In the Pacific Northwest of Canada and the United States, fishing is an important source of income. Much of this is also exported.

17. Impact of Trade Restriction:

LOW

The added cost of landing the salmon or herring is probably minimal, probably no more than 5 percent.

18. Industry Sector:

FOOD

19. Exporters and Importers:

CANada and USA

Given the actual registry of the boats catching the fish, it is difficult to definitively say who is the exporter and who is the importer. However, both countries export these products to Asia,especially Japan, as well as to each other.

V. Environment Clusters

20. Environmental Problem Type:

Species Loss Sea [SPLS]

21. Name, Type, and Diversity of Species

Name: Herring and Salmon

Type: Animal/Vertibrate/Fish/Bony

Diversity: Sustainable yield of 2,900,000 metric tons per year (Northeast Pacific)

Although the number of years to extinction for salmon and herring is not known, it can be noted that the number of species affected in this particular case includes herring and pink and sockeye salmon.

22. Resource Impact and Effect:

HIGH and PRODuct

23. Urgency of Problem:

MEDium and 5-10 years

In the fall of 1991, the Snake River sockeye salmon was added to the nation's endangered-species list (see TIMOWL case). Although over harvesting has contributed to the decline of salmon, the worst enemy of the fish are the hydroelectric dams built on the rivers which interfere with the spawning of salmon. The American Fisheries Society lists 214 wild runs of West Coast salmon, and steel head and cut-throat trout in some danger of extinction. Even so, only one species is protected under the act. Thus, although the catch of salmon and herring is depleting the species, it is not the main cause of resource conservation.

24. Substitutes:

LIKE products

Many other fish products can be substituted for these species.

VI. Other Factors

25. Culture:

YES

Native and non-native Americans alike hold a "special" attachment to the salmon, illustrated by the special rights granted to native Americans in taking of salmon from the Snake and other rivers. Part of their argument for special treatment and exception was due to the unique cultural significance of the salmon for certain peoples. The salmon has in fact been represented in many parts of these cultures: in art, in totem poles, and in carvings.

26. Trans-Boundary Issues:

YES

This issue is not trans-border by nature, but the habitat in question spans the EEZs of Canada and the United States.

27. Rights:

NO

28. Relevant Literature

Davis, Phillip A. "Sockeye Listed As Endangered." Congressional Quarterly Weekly Report 49 (November 16, 1991): 3376.

General Agreement on Tariffs and Trade. November 20, 1987.

Korn, David. "The Case for Preservation." The Nation 254 (March 30, 1992: 414-417.

McDowell, Jeanne. "A Race to Rescue the Salmon." Time 139 (March 2, 1992): 59-60.

Office of the United States Trade Representative (USTR). National Trade Estimate Report on Foreign Trade Barriers. Washington, DC: USTR: 33.


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