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The Interest of Countries in WTO and Plurilateral Negotiations on Fisheries Subsidies

Defining and Defending the Interest of Countries in WTO and Plurilateral Negotiations on Fisheries Subsidies

This paper set out analysis and recommendations directed at defining the notions that are key to the ongoing negotiations on fisheries subsidies. It evaluates how these definitions or elements apply within the context of subsidy disciplines.

Authors: Irina Chicu, Juan Carlos Herrera, and Ariane Vincent.
Clinic: Graduate Institute

1. Introduction

This public paper is a redacted version of a confidential research paper on fisheries subsidies negotiations. The complete version of this paper provides analysis and recommendations with respect to two areas: the first area is the identification and analysis of definitions, subsidies and subsidy disciplines related to illegal, unreported and unregulated (IUU) fishing, overfishing, overcapacity, and artisanal fishing; the second is the assessment of a specific negotiating framework. Due to confidentiality considerations, only an edited version of the first area of analysis is publicly available and presented here.

For the purpose of this public paper, we examine the definitions that are key to the ongoing negotiations on fisheries subsidies. We evaluate how these definitions or elements apply within the context of subsidy disciplines. Where appropriate, we recommend positions that states may wish to take vis-à-vis these definitions and their incorporation into an AFS. The terms covered are: “Illegal”, “Unreported and Unregulated (IUU) fishing”; “overfishing”; “overcapacity” and “artisanal fishing”.

Three key considerations inform the analysis and recommendations in the paper, namely: the need to ensure the long-term viability of fishing and fish stocks in the high seas and in Exclusive Economic Zones (EEZs), support for Sustainable Development Goal 14.6 and support for the prohibition of subsidies that support IUU fishing, overfishing and overcapacity.

1.1 Background: Disciplines on Fisheries Subsidies, Negotiations and Proposals

Negotiations on fisheries subsidies amongst WTO Members launched at the Doha Ministerial Conference in 2001, with the Doha work programme calling for Ministers to clarify and improve WTO rules that apply to fisheries subsidies. The Hong Kong Ministerial Declaration of 2005 reinforced this appeal, noting agreement to strengthen disciplines, including the prohibition of subsidies that contribute overfishing and overcapacity. The Declaration asked Participants to work on establishing the nature and extent of disciplines as well as the integration of special and differential treatment for developing and least-developed Members.

A number of texts have informed the negotiations and continue to be influential. These include texts setting out commentaries or proposed provisions for an eventual WTO agreement on fisheries subsidies (e.g. the 2007 Chair’s text), as well as provisions for subsidy disciplines in non-WTO texts (e.g. the Trans-Pacific Partnership). While also drawing on other sources, we apply three of these throughout our analysis in this paper. A short description of each is set out below.

Annex VIII - Fisheries Subsidies, Draft Consolidated Chair Texts of the AD and SCM Agreements (2007)

The subsidy disciplines proposed in the 2007 Chair’s text consist of a prohibition, general exceptions, special and differential treatment, general disciplines (mainly related to adverse effects of certain subsidies), fisheries management provisions, notification and surveillance provisions, and transitional and dispute settlement provisions[1]. Prohibitions under Article I apply to a positive list of subsidies, which are subject to the general conditions set out in Article 1.1 and specificity criteria set out in Article 1.2 of the SCM Agreement. The text provides for general exceptions to the subsidy disciplines, as well as special and differential treatment provisions for developing and least developed countries. The text also applies a general discipline on the use of subsidies that cause depletion, harm, or the creation of overcapacity with respect to certain fish stocks[2].

Negotiations on Fisheries Subsidies - Report by the Chairman (2011)

The 2011 report assesses progress made in fisheries subsidies negotiations, relative to the elements included in the 2007 Chair’s text. It discusses, in particular, points of convergence and contention between the negotiating parties for each element. The report notes that the content of the 2007 text was controversial, but that it provided a structure that delegations have found to be a valuable basis for discussion.

Chapter 20 – Environment, Trans-Pacific Partnership

The TPP prohibits fisheries subsidies that support activities negatively affecting overfished stocks, as well as subsidies that support IUU fishing. Unlike the 2007 Chair’s text, it does not set out a precise list of targeted subsidies, and it links the prohibition on subsidies that support overfishing to a negative effect requirement. Subsidies that contribute to overcapacity are subject to a soft obligation, in the form of a standstill provision, to refrain from their introduction.

We apply the text of Chapter 20 in this paper in the same way as the 2007 Chair’s text – as a model that bears consideration because it may influence the nature of an eventual AFS. Members involved in drafting the TPP provisions may advocate for the inclusion of similar provisions under the AFS. Other members may, therefore, wish to develop a position relative to TPP elements, regardless of whether the TPP is ratified.

1.2 Terminology

For ease of reference, the term ‘agreement on fisheries subsidies’ and acronym ‘AFS’ are applied throughout this paper in reference to an eventual, but currently hypothetical, agreement that may result from the ongoing negotiations on fisheries subsidies. Analysis and recommendations could apply equally to negotiations in a plurilateral or multilateral context.

2. Assessment of definitions that are central to fisheries subsidies negotiations

2.1 Illegal, Unreported and Unregulated Fishing

2.1.1 Jurisdiction and IUU Fishing

Concerns over IUU fishing relate to two areas, separated by jurisdiction over fishing vessels. The first is activity within areas over which states exercise jurisdiction, namely the Exclusive Economic Zone (EEZ), which extends 200 nautical miles from the coast. Fishing in these zones could be undertaken either by national or foreign vessels. The second is the high seas.

Certain countries exercise rigorous control and management of the fishing activities taking place in their EEZs. Others, particularly a number of developing countries, have poor control over fishing activities in these waters, which may effectively make their EEZs open-access fishing grounds[3].

On the high seas, outside EEZs, control over a vessel is the responsibility of its flag state. Here again, the control exercised differs from state to state. Some countries comply fully with UN conventions, FAO voluntary codes, and RFMO conservation and management measures, while others have a weak control over their fleets. Sometimes vessels are intentionally registered under a ‘flag of convenience’ in order to escape stronger regulations in their country of origin.[4]

2.1.2 Definition of IUU Fishing

As a term, IUU fishing first appeared in 1997 in the Convention on the Conservation of Antarctic Marine Living Resources (CAMLR Convention), describing unauthorised fishing for Patagonian toothfish in the CAMLR Convention Area by non-contracting parties as well as undeclared or misreported catches by CAMLR Convention members[5]. It covered practices that range from large-scale illegal fishing to small-scale subsistence fishing.

The FAO's International Plan of Action to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing (IPOA-IUU) (2001) provides an extensive and widely accepted definition for IUU fishing, as follows:

“Illegal fishing refers to activities:

  • Conducted by national or foreign vessels in waters under the jurisdiction of a State, without the permission of that State, or in contravention of its laws and regulations;

  • Conducted by vessels flying the flag of States that are parties to a relevant regional fisheries management organisation but operate in contravention of the conservation and management measures adopted by that organization and by which the States are bound, or relevant provisions of the applicable international law; or

  • In violation of national laws or international obligations, including those undertaken by cooperating States to a relevant regional fisheries management organisation.

Unreported fishing refers to fishing activities:

  • Which have not been reported, or have been misreported, to the relevant national authority, in contravention of national laws and regulations; or

  • Undertaken in the area of competence of a relevant regional fisheries management organisation which have not been reported or have been misreported, in contravention of the reporting procedures of that organisation.

Unregulated fishing refers to fishing activities:

  • In the area of application of a relevant regional fisheries management organisation that are conducted by vessels without nationality, or by those flying the flag of a State not party to that organisation, or by a fishing entity, in a manner that is not consistent with or contravenes the conservation and management measures of that organisation; or

  • In areas or for fish stocks in relation to which there are no applicable conservation or management measures and where such fishing activities are conducted in a manner inconsistent with State responsibilities for the conservation of living marine resources under international law.”[6]

Following the definition provided by the IPOA-IUU, IUU can be divided into the following components:

Following the table above, IUU activities are defined on the basis of a comprehensive set of key elements:

  • Vessels involved in the fishing activities: national and foreign vessels, vessels without nationality, vessels flying the flag of a State not party to the relevant organization and vessels flying the flag of States that are parties to a relevant regional fisheries management organization.

  • Places where the activities occur: waters under the jurisdiction of a State, areas of competence of relevant regional fisheries management organizations, areas or fish stocks in relation to which there are no applicable conservation or management measures.

  • Measures that govern the activities: without the permission of the State, or in contravention of its laws and regulations, in contravention of the conservation and management measures adopted by organizations and by which the States are bound, or relevant provisions of the applicable international law.

In contrast, the initial draft of the IPOA-IUU was more succinct, stating that:

“The scope of the IUU fishing problem encompasses fishing and related activities, including:

  • Fishing in areas under national jurisdiction without the authorization of the coastal state;

  • Fishing which contravenes or undermines conservation and management;

  • Failure to effectively exercise the required jurisdiction or control over vessels and nationals;

  • Failure to fully and accurately meet fishery and fishing vessel data collection and reporting requirements.”[7]

For additional comparison, the Ministerial Task Force on IUU Fishing on the High Seas (2006) defined IUU fishing as an aggregate concept, which included the following elements:

  • Fishing in violation of international laws and obligations

  • Fishing of high seas fish stocks where there are no formal management arrangements in place but which is in contravention of the broader responsibilities of States under the law of the sea to conserve and manage the marine living resources of the high seas

  • Fishing conducted by vessels without nationality, or by those flying the flag of a State not party to a relevant regional fishery management organization (RFMO), or by a fishing entity, in a manner inconsistent with, or which contravenes, the conservation and management measures adopted by the RFMO or broader international obligations

  • Fishing conducted by nationals of or vessels flying the flag of States that are parties to a relevant RFMO in contravention of the conservation and management measures adopted by that organization or relevant provisions of the applicable international law

  • Fishing, including fishing within the area of an RFMO, which has not been reported, or has been misreported, to the relevant national/international authorities, in contravention of international laws and regulations.[8]

The FAO's 2001 IPOA-IUU aggregate definition is the most commonly applied. This is despite the qualifying phrase ‘In this document', in the definition's chapeau, which indicates the description was not intended to have an effect beyond the context of the document itself. The definition has been widely accepted and is applied or reflected in a number of other contexts, including the following: