China-Mexico Trade in Banned Fish Products under Discussion in USMCA

Illegal fishing has led to trafficking in products of an endangered fish, with consequences for an endangered porpoise that swims near it. The trade in these products has been from Mexico to China, with the United States sometimes in the middle, and Mexican, Chinese, and American officials have been talking to each other about the issue in various fora. The latest developments involve two processes under provisions of the United States-Mexico-Canada (USMCA) trade agreement.

Chinese demand for totoaba bladders catches vaquita porpoises in the nets

As described in a 2016 NPR report, there is high demand in China for the swim bladder of a large fish found in Mexico called the totoaba, which is believed by some people in Chinese to have medicinal value. The totoaba bladder, which the fish inflates and deflates to control its flotation, is about the size of a laptop computer when dried. The report notes a price of around US$10,000 for one bladder in the Chinese market. A Brookings Institution report further explains that: "Soup made from [the totoaba's] swim bladder is considered a delicacy in China. The extraordinarily valuable bladder is also a form of investment and speculation in China."

Chinese demand for totoaba fish bladders is a major contributor to the decimation of stocks of vaquita porpoises in the Gulf of California in Mexico. A 2017 NGO report explains that "[t]he vaquita is not hunted in its own right – it is collateral damage, killed accidentally in the illegal gillnets set for totoaba fish." As the U.S. government NOAA Fisheries division puts it:

The decrease in the vaquita population is also related to the totoaba, a large fish that also only lives in the Gulf of California. The totoaba is listed as endangered in Mexico and the United States and is protected by the Convention on the International Trade in Endangered Species. Because totoaba and vaquita are similar in size, gillnets illegally set for totoaba are the deadliest for vaquitas.

International efforts to crack down

Both the vaquita and the totoaba are listed in the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), making trade in these products illegal. International meetings on this issue have been taking place for several years, first outside of trade agreements, then more recently under them.

In June 2015, China and the U.S. held their first high-level discussions (link in Chinese) on the smuggling. During the meeting, the two sides agreed to "enhance cooperation on illegal trade of wild animals" including totoaba, "endeavor to identify and resolve routes and supply chains of illegal wildlife trade," and "strengthen domestic and international law enforcement efforts."

The NPR report notes that in 2016, government officials from the U.S., Mexico and China met in Geneva to talk about wildlife trade. Mexican officials said China had a responsibility to track down bladder buyers, while China said Mexico should crack down harder on illegal fishing.

And the 2017 NGO report states that "[a]n August 2017 trilateral meeting of Mexico, China and the USA promised 'immediate' action to tackle the illegal totoaba trade."

China prosecuted its first totoaba smuggling case in 2018. This case was selected for inclusion in the 2019 typical cases (link in Chinese) related to protecting environmental resources. In the totoaba case, two suspects were caught trying to smuggle over 400,000 yuan worth of totoaba swim bladders from Mexico to China. Guilin Intermediate People's Court of Guangxi Zhuang Autonomous Region found them guilty of the crime of smuggling precious animal products and they were sentenced to between two and five years, and fined up to 50,000 yuan. The People's Supreme Court characterized this case as "demonstrating the determination to actively fulfill the obligations of international conventions and severely crack down on the smuggling of endangered species."

A BBC report from 2019 notes that authorities in China have been cracking down on smuggling of these products, and there have been continued reports of Chinese law enforcement actions against totoaba smuggling between 2019 and 2021. The same BBC report also says that Mexico's navy has been patrolling the Gulf of California to try to deter smugglers.

Engagement on the issue under trade agreements

The issue has come up in the context of trade agreements as well. As part of last year's WTO trade policy review for China, the United States asked China "what actions [it] is ... taking or planning to take to curb the demand for endangered totoaba bladder?," but did not get a direct response (see pp. 204-205).

In addition, the United States-Mexico-Canada agreement, a renegotiated version of the NAFTA, includes a series of obligations on environmental protection that have provided an avenue for trying to address the vaquita/totoaba problem. The issue has been proceeding separately on two different tracks, with both an environmental review process and a dispute settlement complaint brought by the Office of the U.S. Trade Representative (USTR) under way.

With regard to the environmental review, in August 2021, several environmental NGOs made a submission entitled "Mexico’s Failure To Enforce Its Environmental Laws for the Critically Endangered Vaquita Porpoise" to the Secretariat of the Commission for Environmental Cooperation (CEC) pursuant to Article 24.27 of the USMCA. The CEC's web page for the case is here. (The CEC operates in accordance with the Environmental Cooperation Agreement, which entered into force at the same time as the USMCA.)

The submission notes that "[d]espite the species’ conservation status, totoaba are fished illegally for their swim bladders, which are dried and smuggled abroad, primarily to China, where the product is sought for its supposed health benefits and investment value"; and "authorities in Mexico and China continue to discover illegal, international trade in totoaba bladders."

In April 2022, the CEC Secretariat "determined that the submission warrants the preparation of a factual record under Article 24.28(1) and so informed the Council and the Environment Committee." Article 24.28(2) says that "[t]he CEC Secretariat shall prepare a factual record if at least two members of the Council instruct it to do so." As of this writing, there have been no further updates on the Council's views on the issue.

As to the USTR complaint, U.S. trade officials invoked the USMCA's dispute provisions in February 2022. In a request for consultations, USTR asserted that:

recent reports and observations by stakeholders indicate that ... hundreds of vessels continue to fish illegally in the Zero Tolerance Area (ZTA) that Mexico has established and in which fishing activities of any kind, with any type of vessel, as well as any transit or navigation by any vessel, are prohibited without a special authorization. ... As described in a public submission made to the Secretariat of the Commission for Environmental Cooperation in August 2021, the International Union for Conservation of Nature Cetacean Specialist Group (IUCN CSG) reported that in November 2020, 1,185 boats were documented in the vaquita’s habitat, nearly all gillnetting illegally, and IUCN CSG further noted that "illegal fishing remains at high levels and takes place day and night."

The request also states that: "published reports also indicate that illegal take and trade of totoaba persists despite the legal prohibition enacted by Mexico. An article from January 2021 noted that authorities detected a 350-meter-long illegally-set gillnet containing 13 totoaba, seven of which were dead. Other articles note recent seizures of totoaba in the supply chain in September 2020, April 2021, August 2021, and October 2021."

CTM reached out to USTR for details on what was discussed in these consultations, but did not receive a response. There have been no further public announcements about the dispute.

China and Mexico are also talking directly about the issue, as it appears to have been raised in a recent high level China-Mexico trade meeting. According to a Mexican government description of the meeting, "the officials highlighted the need to collaborate to exchange information on ... the fight against trafficking in marine species." No further details have been released about this issue though.