WTO: fisheries subsidies and fisheries management

A week ago I was discussing how some NGOs and international bodies had published in their websites information about the informal meetings of the WTO Rules Negotiating Group. According to the information published by FFA the next informal meeting will take place on 29 and 30 October 2009 and will cover Article V (Fisheries Management) of the Chair's Draft negotiating text (document TN/RL/W/213 of 30.11.07)

Readers may remember that the discussions at the recent meetings, as reported by the above organisations, take place on the basis of a "Roadmap" that the Chair of the Group, Ambassador Valles (Uruguay) submitted to WTO Members in December 2008 (document TN/RL/W/236 of 19.12.08).

I copy hereunder the questions that the "Roadmap" addresses to WTO negotiators on this article. At the end of the post the reader will find the full text of Article V.

FISHERIES MANAGEMENT CONDITIONALITIES

17. The discussions in the Negotiating Group indicate that participants generally believe that exceptions – both general and S&D – should not be unconditional, given their potential to undercut the effectiveness of the disciplines on subsidies that contribute to overcapacity and overfishing.

 18. The discussions also have indicated a widely-shared view that the principal conditionalities should pertain to fisheries management, a central component of which would be stock assessments, in part because of the difficulties of directly measuring the effect of particular subsidies on particular wild capture fisheries due to the mobile and undomesticated nature of the resource.

 19. There are, however, differing views as to how much detail WTO fisheries subsidies rules should contain on fisheries management, in respect of both the substantive basis of such conditionalities and the appropriate fora and mechanisms for monitoring and enforcing their implementation. There has been considerable debate on the approach taken to these issues in my first draft text.

 

20. I would ask participants to reflect on the following questions:


(a) Are there other conditionalities that should be applicable to exceptions (general and S&D), either in addition to or instead of fisheries management conditionalities?

 (b) How important is it for the effective operation of the disciplines that all Members' fisheries management systems and measures adhere to a common standard, and how prescriptive should that standard be?

(c) If a common standard is not necessary or not acceptable, how could the effectiveness of different Members' systems in controlling overcapacity and overfishing be monitored and enforced?

• - What would prevent one Member with ineffective management from overfishing stocks that were safeguarded/replenished by another Member's effective management measures?

d) Given that an international consensus already exists in respect of a substantial number of international fisheries management instruments, and those instruments themselves take account of the capacity constraints of developing countries, does it make sense to draw inspiration from those instruments for the substantive content of management conditionalities for using exceptions from the prohibition?

• (i) If not, why not?
• (ii) If so, how could the typically non-binding nature and relatively general and flexible wording of those instruments be reconciled with a binding prohibition of subsidies that contribute to overcapacity or overfishing, and binding conditionalities concerning fisheries management where exceptions are used?

(e) What role should stock assessments play in any management conditionalities?

• (i) If stock assessments are considered unnecessary, why, and how could overfishing and overcapacity be monitored in the absence of stock assessments?
• (ii) If stock assessments are considered to be a necessary element, how could the rules take into account Members' different capabilities while ensuring that the assessments are as reliable and robust as possible?
• (iii) To what extent if at all should the results of stock assessments form part of any conditionalities?

(f) Is it logical to require a stock assessment before a capacity-enhancing subsidy is provided?

• (i) If not, why not?
• (ii) If so, what practical problems would need to be resolved?
• (iii) What timing and review mechanism for such stock assessments could best reconcile a Member's need to implement a given subsidy on the one hand, and other Members' need for multilateral surveillance/transparency in respect of the fisheries resources that would be affected by it on the other hand?

(g) Given the existing role of the FAO in discussing FAO members' substantive implementation of various international fisheries instruments, what specific problems/concerns would there be if that role were enhanced in respect of stock assessments and/or fisheries management systems?

• - Would the problems be the same if the review at the FAO were similar to reviews of notifications by WTO bodies (i.e., multilateral review among members, for transparency, rather than a mechanism for approval, whether by a panel of experts or a multilateral body)?

(h) Why, if at all, would the WTO be better-positioned to perform such reviews of fisheries-related information?

• - How could the necessary expertise be built into any WTO-based review of fisheries management, without the WTO becoming a fisheries management organization?

Article V Fisheries Management

Any Member granting or maintaining any subsidy as referred to in Article II or Article III.2(b) shall operate a fisheries management system regulating marine wild capture fishing within its jurisdiction, designed to prevent overfishing. Such management system shall be based on internationally-recognized best practices for fisheries management and conservation as reflected in the relevant provisions of international instruments aimed at ensuring the sustainable use and conservation of marine species, such as, inter alia, the Fish Stocks Agreement, the Code of Conduct, the Compliance Agreement, technical guidelines and plans of action (including criteria and precautionary reference points) for the implementation of these instruments, or other related or successor instruments. The system shall include regular science-based stock assessment, as well as capacity and effort management measures, including harvesting licences or fees; vessel registries; establishment and allocation of fishing rights, or allocation of exclusive quotas to vessels, individuals and/or groups, and related enforcement mechanisms; species-specific quotas, seasons and other stock management measures; vessel monitoring which could include electronic tracking and on-board observers; systems for reporting in a timely and reliable manner to the competent national authorities and relevant international organizations data on effort, catch and discards in sufficient detail to allow sound analysis; and research and other measures related to conservation and stock maintenance and replenishment. To this end, the Member shall adopt and implement pertinent domestic legislation and administrative or judicial enforcement mechanisms. It is desirable that such fisheries management systems be based on limited access privileges . Information as to the nature and operation of these systems, including the results of the stock assessments performed, shall be notified to the relevant body of the FAO, where it shall be subject to peer review prior to the granting of the subsidy . References for such legislation and mechanism, including for any modifications thereto, shall be notified to the Committee on Subsidies and Countervailing Measures ("the Committee") pursuant to the provisions of Article VI.4.

V.2 Each Member shall maintain an enquiry point to answer all reasonable enquiries from other Members and from interested parties in other Members concerning its fisheries management system, including measures in place to address fishing capacity and fishing effort, and the biological status of the fisheries in question. Each Member shall notify to the Committee contact information for this enquiry point.