16 november 2017 | geneva, switzerland · 16 november 2017 | geneva, switzerland session i: options...

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16 November 2017 | Geneva, Switzerland

Session I: Options for the Legal Form of Fisheries Subsidies Disciplines

Lorand BARTELS

Lorand Bartels, Reader, International Law, University of Cambridge

(A) Agreement Establishing the World Trade Organization

(B) Multilateral Trade Agreements

• Annex 1A: Multilateral Agreements on Trade in Goods

• Annex 1B: General Agreement on Trade in Services

• Annex 1C: Agreement on Trade-Related Aspects of Intellectual Property Rights

Annex 2: Dispute Settlement Understanding

Annex 3: Trade Policy Review Mechanism

(C) Plurilateral Trade Agreements

• Annex 4: Agreement on Government Procurement

Agreement on Trade in Civil Aircraft

WTO agreements

(A) Agreement Establishing the World Trade Organization

(B) Multilateral Trade Agreements

• Annex 1A: Multilateral Agreements on Trade in Goods

• Annex 1B: General Agreement on Trade in Services

• Annex 1C: Agreement on Trade-Related Aspects of Intellectual Property Rights

Annex 2: Dispute Settlement Understanding

Annex 3: Trade Policy Review Mechanism [not subject to the DSU]

(C) Plurilateral Trade Agreements

• Annex 4: Agreement on Government Procurement

Agreement on Trade in Civil Aircraft

WTO agreements – subject to the DSU

Annex 1A: Multilateral Agreements on Trade in Goods

• General Agreement on Tariffs and Trade 1994 (GATT 1947 and ‘other decisions’ under

GATT 1947)

• Rules, eg most favoured nation (Art I), national treatment (Art III)

• Schedules of concessions (Art II)

• Schedules are individual ‘offers’ which are agreed, certified, and have the same status as the GATT 1994 (Art II:7)

• Schedules typically cover tariff commitments, but also subsidy commitments, and can (and have) covered any commitment on trade in goods

• Schedules cannot override GATT rules (Sugar Headnote principle)

• Exceptions, eg public policy (Art XX), Enabling Clause [an ‘other decision’]

• Other Multilateral Trade Agreements: for example

• SCM Agreement, Agriculture Agreement, TBT Agreement, SPS Agreement, Trade

Facilitation Agreement

Multilateral Agreements on Trade in Goods (Annex 1A)

• GATT 1994

• Other Multilateral Trade Agreements [prevail over GATT 1994]*

• Agriculture Agreement [prevails over SCM]

• SCM Agreement

• SPS Agreement [prevails over TBT]

• TBT Agreement

• Trade Facilitation Agreement [subject to GATT 1994, TBT and SPS]*

Conflicts between WTO Annex 1A Agreements

Procedure

• 2/3 vote for most amendments (eg Trade Facilitation Agreement, TRIPS waiver), binding on those

who accept the amendment

• Consensus for certain amendments (eg MFN obligations)

• Consensus for new plurilaterals in Annex 4

Legal effect of amendments

• Amendments and the only way of altering the WTO agreements

• But there are other ways of altering individual rights and obligations under the WTO agreements

• Scheduled commitments (where permitted, eg GATT 1994, GATS, GPA) can add to obligations

• Waivers can diminish obligations (or add to rights)

• Other instruments can interpret WTO rights and obligations (discussed later)

• Panels and Appellate Body can clarify WTO rights and obligations

• Compare ‘authoritative interpretations’ and other interpretive instruments (later)

Amendments (Article X of the WTO Agreement)

Option 1

• A new Annex 1A Agreement (eg Trade Facilitation Agreement)

Option 2

• A new Annex to the SCM Agreement

• Advantage: can use existing institutional architecture and legal architecture (eg definitions, SDT exemptions)

Others

• Scheduled commitments (eg Information Technology Agreement, commitments on

export subsidies following Nairobi Declaration)

• A new plurilateral agreement

Implications for a Fisheries Subsidies Agreement

Effects on existing WTO rights and obligations

• Option 1 (1A Agreement) can alter relevant rights and obligations

• Option 2 (SCM Annex) can alter relevant rights and obligations

• Practically it would be desirable not to undermine existing SCM agreement

But note conflicts issues

• Is the new agreement to prevail over existing WTO law? Or is it subordinate to existing

WTO law?

• Examples

• Do exceptions in new text apply only to new obligations?

• Do rules on attribution, nationality of beneficiary and geographical destination of subsidy affect normal subsidies definitions? Do they affect rules on tied aid under the Government Procurement Agreement?

• No consequences for choice of options, as questions need to be addressed in any case

Issues arising – legal effects

Binding effect

• Both Options 1 and 2 have binding legal effect and are (or can be made) subject to the

DSU

But note enforcement issues

• Different retaliation options when non-compliance

• DSU rule: retaliation calculated as annual USD figure ‘equivalent’ to trade effects

• Special SCM Agreement rule: ‘appropriate countermeasures’ on which jurisprudence has varied between ‘amount of the subsidy’ (Brazil – Aircraft) to ‘based on the trade distorting impact of the subsidy’ (US – Cotton)

• ‘Appropriate countermeasures’ much more suitable to a fisheries subsidies agreement

that does not depend on trade effects, but note need for clarification of jurisprudence on

trade effects and risk that Members may have different views on this jurisprudence

• Conclusion: ambiguous re Options, depends on views on ‘appropriate countermeasures’

Issues arising – legal effects (2)

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Session I: Options for the Legal Form of Fisheries Subsidies Disciplines

Tibisay MORGANDI

Tibisay MORGANDI, Post-Doctoral Fellow, University of Cambridge

• Not devoid of legal effect

• Effect more limited than that of formal amendments to the agreements

• It is worth looking at them even though the proposals point in the

direction of a formal legally binding agreement

Ministerial Decisions Authoritative Interpretation under Art. IX:2 (Option C1)

Waiver under Art. IX:3 (Option C2)

Ministerial Decision under Art. IV:1 (Option C3)

Ministerial Declaration under Art. IV:1 (Option C4)

Stand-alone text: non-legally binding options

Authoritative Interpretation (Art IX:2): ‘The Ministerial Conference and the General

Council shall have the exclusive authority to adopt interpretations of this Agreement

and of the Multilateral Trade Agreements’

• Procedure

• Proposed by Council overseeing the functioning of the agreement

• Requires ¾ vote

• Legal effect

• Binding on all Members (even those that voted against)

• Limits for fisheries subsidies?

• Inexistence of term in SCM Agreement that can be interpreted in such an expansiveway as to incorporate them

• Strong interpretation of WTO Agreement (‘shall’ becomes ‘should’) but not newobligations (‘not to undermine amendment provisions in Art X’)

Option C1 – Ministerial Decision: Authoritative Interpretation

Ministerial Decision under Art IV:1

• Decisions ‘on all matters under any of the Multilateral Trade Agreements’

• Procedure

• Adopted at the WTO Biennial Ministerial Conference

• In the interim: by the General Council

• Requires simple majority vote

• Practice: adopted by consensus

• Function

• Interpretive value (on their own or as subsequent agreement/practice)

• Limits for fisheries subsidies?

• Cannot create new legal obligations

• But may be used to relinquish the right to invoke dispute settlement procedures

Option C3 – Ministerial Decision under Art IV:1

Ministerial Declaration under Art IV:1

• Same status as Ministerial Decisions under Art IV:1

• Procedure

• Adopted at WTO Biennial Ministerial Conferences

• In the interim: by the General Council

• Requires simple majority vote

• Practice: adopted by consensus

• Function

• Interpretive value

• Difference from Ministerial Decision:

• Ministerial Decision: used in relation to conduct

• Ministerial Declaration: used in relation to facts (to share a certain understanding of alegal or factual state of affairs)

Option C4 – Ministerial Declaration under Art IV:1

• Not suitable legal form for more extensive new disciplines• Existing subsidies rules only covers fisheries subsidies with negative trade

effects

• All types of decisions and declarations are useful in sending apolitical signal

• Ministerial Decisions versus Declarations• Formally the same legal status

• Decisions mainly used to express conduct obligations (‘we undertake’)

• Declarations mainly used to express agreement on facts (‘we recognise’)

• But not always – eg Information Technology Agreement was a hard Declaration

• A trajectory: Declarations -> Decisions -> Amendment (eg the TRIPS waiver)

Non-binding Options – Suitability

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Margaret YOUNG, Associate Professor, University of Melbourne Law School


Session 1: Fisheries subsidies rules and existing frameworks

MARGARET YOUNG

I. The Law of the Sea in overview

II. Maritime Zones relevant to the proposals

III. The exercise of entitlements

• General rights and obligations

• Rights and obligations of flag states

• Rights and obligations of coastal states

• Rights and obligations with respect to shared stocks

Plan for today’s presentation

1. UNCLOS and relevant Implementing Agreements, including UN Fish Stocks Agreement

2. FAO Agreements and Voluntary Instruments (eg IPOA-IUU)

3. Regional Agreements including RFMOs

4. Case law from binding dispute settlement

I. The Law of the Sea and Fisheries - Overview

1. Territorial sea

• Eg proposals to exclude fishing within the territorial seas from the application of some subsidy prohibitions

2. Exclusive Economic Zone

• Eg proposals that seek to differentiate subsidies that support fishing by WTO members within and outside their own EEZ prohibition on subsidies that contribute to overfishing and overcapacity, with no application to fishing activity within developing countries’ own EEZ (or where a member’s EEZ resources are ‘underexploited’)

3. High seas

• Eg proposed exemptions within EEZ would focus the impact of the subsidies disciplines on high seas activities but note some proposals would allow subsidies to exploit rights held by a member in high seas fishing quotas

II. Maritime Zones

12 nm

Source: Rothwell and Stephens, The International Law of the Sea (2017) (online edition)

Territorial

Sea

Contiguous

Zone

12 nm

200 nmLand

Ba

se

line

Continental Shelf The Area

High

Seas

Exclusive Economic Zone

1. General rights and obligations

• Provisions relating to the conservation and management of the EEZ and high seas

• General obligation of states to ensure that activities within their jurisdiction and control respect the environment of other states and of areas beyond national control• Relates to duties of ‘conduct’ rather than ‘result’ – due diligence

• General obligation to protect and preserve the marine environment in Part XII of UNCLOS

2. Rights and obligations of flag states

• Flag states must take necessary measures to enforce the rules applicable in the area where the fishing is taking place, exercise control over administrative matters, investigate allegations and report to the relevant coastal state (‘due diligence’ obligations in foreign EEZs)Prohibition on subsidies to vessels identified as operating illegally in coastal state’s EEZ would make this

obligation more concrete

• Flag states’ freedom of fishing on high seas is subject to constraints from RFMOs, as well as interests of other states Prohibition on subsidies for fishing activities on high seas that are already overfished are compatible with these

obligations

III. The exercise of entitlements

3. Rights and obligations of coastal states

• Sovereign rights over fisheries, while having ‘due regard’ to rights and duties of other states –

especially in determining allowable catch for the living resources in EEZ

• Coastal state shall take into account ‘the best scientific evidence available to it’ to ensure

maintenance of living resources in the EEZ is not endangered by overexploitation

Shall cooperate with RFMOs and, under UNFSA, use precautionary approach

If manifestly fails to comply with its obligations, it may be required to be subject to compulsory conciliation

• If coastal state allows other vessels access to EEZ to fish for surplus, it can impose conservation

measures (discretion is broad – query whether subject to compulsory dispute settlement)

• Proposals for disciplines on subsidies relating to IUU fishing that enable coastal states to notify the

WTO of vessels or operators that flout conservation measures are consistent with coastal states’

responsibilities

III. The exercise of entitlements (cont)

4. Rights and obligations with respect to shared stocks

• Obligation to cooperate

UNFSA (if parties fail to become members of an RFMO or refuse to apply conservation and management measures, they can be denied access to fishery)

non-parties to UNFSA are not covered by these rules (pacta tertiis), but still have general obligations under UNCLOS

• RFMOs are involved with establishing lists of vessels involved in IUU fishing

Proposals have emphasised the need for due process

Proposals have emphasised that members won’t become bound by other measures or decisions of RFMOs – this is standard language eg from PSMA

• RFMOs are required to operate in a transparent and non-discriminatory way according to the UNFSA

and the FAO Code of Conduct

They are to be open to states with ‘a real interest in the fisheries concerned’ – this is undefined but expected to include flag states fishing in relevant area, coastal states whose maritime zones are included in or adjacent to relevant area plus states with a past or future fishing interest or states which wish to participate for broader (sustainability) reasons

III. The exercise of entitlements (cont).

Conclusions

• Law of the sea obligations are relevant and underpin proposals at the WTO

• Subsidy disciplines add an important economic dimension that are arguably consistent with the law of the sea, especially with respect to general and specific duties relating to conservation and management

• Proposed exceptions for the disciplines may be wide in practice and would need to be implemented very carefully, especially to ensure consistency with UNCLOS obligations regarding the sustainability of EEZ resources

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Gregory MESSENGER, Lecturer in Law, University of Liverpool


Session 1: Fisheries subsidies rules and existing frameworks

GREGORY MESSENGER

I. The existing framework for subsidies: the SCM Agreement

II. Building on the SCM Agreement

III. Building beyond the SCM Agreement

IV. Concluding remarks

Outline

• Definition: elements of a subsidy

• Types of subsidies: prohibited v actionable

• Remedies: direct challenge & self-help (CVDs)

• S&DT provisions: exemptions, transitions, and limited

standstill

• Notification requirements and the Committee

The structure of the SCM Agreement

• Terms of art: building in predictability

• The limiting effect of specificity

• Attribution: grantors over beneficiaries

• Possible illustrative Annex(es)

• S&DT: transition periods, substantial standstill

• Notifications: types of data, and the role of the Committee

Building on the SCM Agreement

• Deference

• Examining national determinations

• The use of RFMO determinations

• Remedies

• Adjusted use of CVDs

• Use of other measures

• S&DT

• Possible ‘non-actionable’ categories of fishing

• Territorial provisions

Building Beyond the SCM Agreement

• The existing subsidies framework is a known quantity

• In many ways proposals build on the existing framework

• Where they do not, parallels can still be drawn to other

approaches in WTO law to support their development

Concluding Remarks

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Arthur APPLETON, Partner, Appleton Luff – International Lawyers


Session 2: Improving transparency of fisheries subsidies

ARTHUR APPLETON

• Explore possible approaches to improved subsidies

notifications and notifications of relevant fisheries

information.

Goal of this Presentation

• Article 25 of the SCM Agreement, Article XIV of GATT 1994, and

the Questionnaire in G/SCM/6/Rev.1 (11.11.2003) provide a

well-developed subsidy notification regime covering: name and

legal basis of the programme, level of support provided, and

description of the subsidy.

• Member compliance with these requirements is in the

Chairman’s words “discouragingly low”.

Background

• There is a need to improve compliance with existing

notification obligations.

• New disciplines on fisheries subsidies will require expanded

notification provisions, to help assess compliance and the

impact of subsidies on the environment, for example:- Conservation measures in place for fish stocks, fisheries and applied

to vessels receiving subsidies

- Fleet capacity

- Status of fish stocks

- Catch data, etc.

Background

New Zealand, Iceland and Pakistan

EU Argentina, Colombia, Costa Rica, Panama, and Uruguay

LDC Group

USA

Programme name# ✓ ✓ ✓ ✓ ✓

Legal basis and granting authority for the programme#

✓ ✓ ✓ ✓ ✓

Conservation and management measures in place: (a) for the relevant fish stock, (b) in the relevant fishery, (c) applied to the fish stock targeted by the vessel benefitting from the subsidy

✓(a) ✓(c)(best

endeavour)

✓(a) ✓(b) ✓(a)

Commonality: Notification Elements

(*) already covered by SCM Article 25 and GATT Article XVI:1. (#) falls within disciplines set forth in G/SCM/6/Rev.1 of 11 November 2003.



LDC Group

USA

Level of support provided* # ✓ ✓ ✓

Fleet capacity in the fishery for which the subsidy is provided

✓ ✓ ✓ ✓

Status of the fish stocks in the fishery for which the subsidy is provided (for example, overfished, fully fished, underfished or overexploited, depleted, fully exploited, recovering, underexploited)

✓ ✓

(best endeavour)

✓ ✓

Wide Support




LDC Group

USA

Type or kind of marine fishing activity supported by the programme

✓ ✓ ✓

Members shall also provide information in relation to other subsidies granted to the fisheries sector, for example fuel subsidies*

✓ ✓ ✓

Catch data by species in the fishery for which the subsidy is provided

✓ ✓

(to extent possible)✓

Total imports and exports per species#

✓ ✓

(to extent possible)✓

Wide / Some Support




LDC Group

USA

Vessels and operators fishing in areas beyond national jurisdiction, for which the subsidy is provided

✓

Any fishing capacity management plan applied to the fleet to which the vessels benefitting from the subsidy belong

✓

(best endeavour)

Name of recipient# ✓

Vessel name, identification number

✓

Additional Proposals

Support to Fisheries: Levels and Impacts:

• Provides information on support policies implemented in 31 countries, including four outside the OECD. (Due to be expanded.)https://www.oecd.org/agriculture/support-to-fisheries.pdf.

Sources of Existing Data: OECD

https://www.oecd.org/agriculture/support-to-fisheries.pdf

OECD.stat:

• Provides data on: International trade of fisheries products; Fisheries Support Estimates (FSE); Government Financial Transfers (Historical Archive); National Landings in Domestic and Foreign Ports; Foreign Landings in Domestic and Foreign Ports, Production from Aquaculture; Employment in Fisheries; fishing Fleet and Inland Fisheries http://stats.oecd.org/.


http://stats.oecd.org/

OECD Fisheries Support Estimate (FSE) database:

• Provides fisheries-related data on OECD countries (except Austria, Finland, Switzerland, Israel, the Slovak Republic and Luxembourg), as well as Argentina, Colombia, Indonesia and Chinese Taipei. Allows users to compare how fisheries supports differ between countries and evolves. http://www.oecd.org/tad/fisheries/fse.htm.


http://www.oecd.org/tad/fisheries/fse.htm

OECD is in the process of implementing a new “targets and thresholds” questionnaire:

• Seeks to determine whether fish stocks, for which targets and thresholds are set, are in acceptable condition.


• FAO does not deal specifically with subsidies issues.

• Mandated by its constitution to “undertake the worldwide collection, compilation, analysis and diffusion of data and information in fisheries and aquaculture”.

Sources of Existing Data: FAO

National Fishery Sector Overview:

• Examines fisheries for all featured countries, “including economic and demographic information, structure of the industry, development prospects, sector management and status and trends.” The FAO commissions a national expert to collect data from a particular country, and produces fishery country profiles for approximately 170 countries. http://www.fao.org/fishery/collection/nfso/en.


http://www.fao.org/fishery/collection/nfso/en

FAOLEX and FISHLEX Databases:

• FAOLEX contains national legislation, policies and bilateral agreements on food, agriculture and natural resources management with on average 8,000 new entries per year drawn from more than 200 countries. http://www.fao.org/faolex/background/en/

• FISHLEX contains the coastal state requirements for foreign fishing (oriented towards fishing licenses, fishing agreements, and fisheries). http://extwprlegs1.fao.org/fishery/index.htm.


http://www.fao.org/faolex/background/en/

http://extwprlegs1.fao.org/fishery/index.htm

FAO Data on Global Fleet Statistics: Fleet statistics are currently reported by approximately 70 countries (many of which are EU Member States), with on average 55 countries reporting by length overall.

FAO Data on Global Capture Production: The FAO collects data for around 230 countries and territories.

FAO Commodity and Trade Statistics: Information on imports and exports of fish products covering approximately 1,000 fish species, by volume and by value. The data (including estimates) is based on annual updates from national authorities in around 130 countries.


Fisheries and Resources Monitoring System (FIRMS) database: Operates as a partnership between FAO and intergovernmental fisheries organizations. Extensive database dealing with fisheries,fish stocks, including species captured, as well as information and factsheets on regional fisheries bodies (RFB), and countrywide information on legislation. http://firms.fao.org/firms/en.


http://firms.fao.org/firms/en

1) Provide technical assistance to help Members abide by existing commitments.

2) Avoid duplication with the work of other organisations – try to learn from and integrate the work of the FAO and OECD – their work demonstrates what is possible, and suggests avenues of cooperation.

- FAO and OECD data may help to assess compliance with any new disciplines that are agreed.

Improving the Notification Process

3) Eliminate incentives not to report:

a. Empower the Secretariat to source and table fisheries-related information obtained from other organisations,

b. Accept relevant reports from other international organisations, RFMOs, and perhaps NGOs, and

c. Encourage counter-notifications from Members.

4) Require notification of information relevant to assess compliance with possible new disciplines, for example:

a. Notification of vessels on IUU lists and national lists, and

b. Assessments of whether stocks are overfished.

Improving the Notification Process

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Wirya Khim, Natural Resources/Climate Change Officer, FAO Geneva



WIRYA KHIM

For Marc Taconet, Branch Head, Fisheries and Aquaculture Information & Statistics Service, FAO

1. Fishing activity

2. Fleet capacity

3. Catch by species

• EEZs vs High Seas

• Small Scale vs Large scale

4. State of fish stocks

5. Import and Export by species

6. Other relevant sources

Contents

Fishing activity

‘Global Record of Stocks and Fisheries’

Objective

• A Global repository of unique stocks and Fisheries

• Stocks and fishing activities uniquely identified

• Global Unique Identifiers published

• Based on global information standards

Audience – support to

• monitoring of fish stocks

• Fisheries traceability

Status

• in development

• Release in 2018

Fleet capacity by fishery

Structure and coverage

• Number of fishing vessels reported by country by vessel type, size (GRT or LOA) and power from 1970 onwards

• 32 vessel type categories included in the revised FAO ISSCFV, including non-fishing support vessels

• Current coverage rate for questionnaire responses is 78%

AvailabilityNot published on FAO website (new database will be released in 2018)Trends analysis in SOFIA - total capacity (size and power of the fleet), fleet age-structure

Quality is variable • Best quality/resolution data: regions with strong existing fisheries policies as fleet characteristics and vessel

registries are critical component of fisheries management• Fleet statistics data annually reported for about 90 countries (1/3 of this total are the EU countries)• Reporting of fleets by Size class possible for about 70 countries; by LOA size for about 55 countries

• For the other countries with periodic census, reporting with longer update intervals, and consistency issues

FAO Global Fleet Statistics

Fleet capacity by fishery (cont.)

Issues

• Lack of incentives for Vessel registries (and costs of maintenance) have resulted in lower data quality and reporting rates from all countries;

• weak coverage and reporting quality for vessels of smaller scale fisheries, in particular undecked vessels (smallest category)

Small=scale vessel in Lebanon Photo credit: Dario Pinello

Opportunities for more accurate reporting on Capacity• Generalization of fleet registries - Adoption of Unique Identifiers

• Port State Measures agreement – fleet registries critical for vessel tracking

• Increasing focus / support of SSFs provide opportunity to implement fleet registers

• Enhanced standards: updated & simplified international classifications (Vessels – ISSCFV, and Gear - ISSCFG)


Context of High Seas RFMOs

• RFMO Databases contain:• regional registers of authorized vessels• Black listed Fishing Vessels

• Compilation of Fleet capacity requires consolidation of regional/national registries at global level (Tuna CLAV, Global Record, Fishing Vessel Finder)

Countries capacities in context of Coastal RFMOs/RFBs• Recent efforts to develop regional databases distinguishing

fleet segments, including Small vs Large scale• Full reporting against Minimum Data Requirements generally

still weak Other national contexts• Same as above, without the incentive of regional databases

Mixed vessel types in Essaouira, Morocco Photo credit: saiko3p / Shutterstock.com

Global facts and feasibility

Implications for WTO transparency rules on fishery subsidies

Requiring notification of fleet capacity in a WTO agreement could – with appropriate support– provide incentives for the development of fleet registries, a critical step in improving ability to estimate fleet capacity and examine fleet segments in accurate detail


Catch by species


• capture production statistics in quantity by country or territory, species item, and FAO Major Fishing Area, from 1950

Availability

• data are updated annually for about 230 countries and territories, 26 major fishing areas, and 2,070 marine and inland species items

FAO Global Capture Production

• Where catches not reported, or deemed not reliable, FAO estimates the missing data

Quality

• Species breakdown (an indicator of quality in reported catches) doubled between 1996 (1035) and 2015 (2070)

• Problematic areas: Asia, East Africa, Caribbean

http://www.fao.org/fishery/statistics/global-capture-production/en

http://www.fao.org/fishery/statistics/global-capture-production/en

Catch by species – SSF vs Industrial

Issues

• No global definition of Small scale

Opportunities

• Countries often have definitions of Small scale vs larger scale

• Momentum• Voluntary Guidelines on Small Scale Fisheries

• SDG14.6.1: developing global statistical definitions of SSF

Catch by species – EEZs vs High Seas

Issues

• Partial coverage of statistical reporting systems by EEZs vs High Seas• Uneven commitment of States to make catch data available with information on

catch location available to FAO or RFBs.

• No generalized commitment to transparency (UNGA FSA missed opportunity)

• Existence of conflicting national Jurisdictions at sea

Opportunities

• New technologies (AIS) raise prospect of precise reporting of catch location

• Caveats – uneven uptake of AIS technology worldwide

Catch by species – EEZs vs High Seas; SSF vs Industrial

Context of High Seas RFMOs

• Industrial fleets: able to report catches distinguishing EEZs/HighSeas

• Semi-industrial fleets: some fleets not properly equipped for reporting EEZs/HighSeas

• RFMO Databases contain (estimates) catch by country by species with EEZs vs High Seas

Countries capacities in context of Coastal RFMOs/RFBs

• Recent efforts to develop regional databases distinguishing fleet segments, including Small vs Large scale

• Geographic location (EEZs vs HighSeas) unevenly addressed:• Small scale generally operate within EEZs; when occurs, reporting catches in neighboring EEZs only

true in context of specific access agreements• Geographic reporting of Larger scale generally remains a weakly addressed problem

Other national contexts

• Same as above, without the incentive of regional databases


Catch by species – EEZs vs High Seas; SSF vs Industrial


• Reporting catch by species for large scale fisheries in EEZ vs HighSeas would be possible for most countries. Requires commitment to transparency.

• FAO data could be used to fill gaps in national reporting.

• Reporting catch by species for small scale fisheries is currently possible for developed countries and for some, but not most, developing countries, but this is the focus of current effort

• No direct inference on State of Stocks can be made from Catch data alone and out of context


FIRMS is an information sharing partnership to facilitate the monitoring of stocks status among:

• 14 International organizations

• 19 RFBs

FIRMS – the Fisheries and Resources Monitoring System Status of fish stocks

FIRMS – the Fisheries and Resources Monitoring System

Monitoring is based on inventories of stocks and fisheries – 19 RFBs ; > 1000 stocks

Each stock inventoried include:

- information on the identification of single marine resources/stocks

- - plus the indicators of Stock State and total catch (or landings)

Status of fish stocks




Opportunity: with SDG 14.4.1, countries are to report on the status of stocks within their EEZs

• National inventory of stocks / status will expand the current FAO database

Challenge: building national capacities for stock assessment, monitoring and reporting

• FAO develops a capacity building plan for assessment in Data poor situations

• FIRMS decided to support building on “Global Record of Stocks and Fisheries”

COFI33 (July 2018) key milestone for countries to reach agreement on:

• a standards-based inventory approach for monitoring stock status

• traceability and transparency, comparability across national … regional … global level

• expected to strengthen SOFIA’s indicator on the state of stocks

SDG 14.4.1 “proportion of fish stocks within biologically sustainable levels”

Implications for WTO transparency rules on fishery subsidies• Technical assistance available to help countries build the ability to

assess their stocks. Will take some time.• Notifying the status of the stock for which a subsidy is provided in the

WTO will generate the information countries need to report against the SDGs too.

• SOFIA and FIRMS can be used, in particular for High Seas, in the meantime.


Imports and exports by species (Trade)


• Annual data for about 210 countries, by trade flows (imports, exports, re-exports) and commodities in terms of volume and value from 1976

• Species by different levels of preservation (live, fresh or chilled, frozen, cured, prepared or preserved, meal, oil, etc) and product form (whole, gutted, fillets, meat, etc)

• Data by about 1 000 species/commodity items

• National data collated through FAO ISSCFC

Availability

• Published on FAO website with annual updates

Quality

• Trade data provided officially by about 130-140 countries on annual basis. For unavailable data, FAO estimates trade data on the basis of statistics of trading partners

• Main problematic areas in terms of lack of reporting and of the quality of data: several African countries and Pacific /Caribbean islands

• Quality defects: incomplete, inadequate levels of detail

FAO Fishery Commodity and Trade Statistics

http://www.fao.org/fishery/statistics/global-commodities-production/en

http://www.fao.org/fishery/statistics/global-commodities-production/en

Issues

• Not proper recording of landings abroad / transshipments / catch exported by flag of convenience vessels

• The lack of specification for species and products form in trade data in several countries. FAO work with World Customs Organization to improve the coverage in the Harmonized System Classification (HS)

Possible improvements (as corollary)

• To improve the national breakdown by species and product forms on the national classifications based on HS. Also introducing codes for differentiating farmed vs wild origin

• To improve the collection of data on transshipments and landings abroad

• To regular provide trade statistics to international organizations, including UNSD, with which FAO and other international organizations share trade statistics

Imports and Exports by Species (Trade)


Reporting imports and exports by species is possible for most countries (using FAO trade databases) within the limits of the accuracy of current trade data.

Imports and Exports by Species (Trade)

FAO RFBs database http://www.fao.org/fishery/rfb/search/en

• Inventory and brief description of RFBs of the world

• Membership of each RFB maintained and listed

Sources of fishery legislations, management plans, management measures

• FAOLEX / FishLex: FAO Database as compendium of regional and national legislations

• RFMO websites for Regional Fishery Management plans / management measures

FAO Loss and Damage database

• Inventory of natural disasters

• Intends to assess sectoral losses and damages caused by natural disasters

• Methodology and pilots proceeding

OECD Fishery subsidies database GFT database

• disseminates statistics on government financial support to fisheries

• Since 2017, a new dataset called Fisheries Support Estimates contains data and descriptions of country-level programmes

Other possible relevant sources

http://www.fao.org/fishery/rfb/search/en

Thank you for your attention!

For more information please [email protected]

mailto:[email protected]

www.ictsd.org

Robert WOLFE, Professor Emeritus, Queen’s University, Canada



ROBERT WOLFE

1. Identify where fisheries subsidies may be having negative

environmental effects

2. Support the process of domestic reform of fisheries policies

3. Facilitate use of WTO as a venue for members to learn about

their own fisheries policies as well as those of others

4. Use sunshine to provide discipline on trade effects while

avoiding dispute settlement system

Why bother with fisheries subsidies transparency?

1. Process for developing a rule or a policy domestically

2. Mechanisms to enforce a rule or implemented a policy

3. Publication of the rule at home

4. How other Members of the WTO are notified

5. How notification is discussed in Geneva

6. Geneva results published.

Both the information and the discussion are necessary to bring the

disciplines to life.

Transparency in WTO includes …

Trade officials lack knowledge about complicated domestic programs (e.g.

fisheries)

Lack of clarity on what to notify (definitions matter)

Domestic officials may not think in the terms required by WTO

Fear of criticism

Inability to see information as a public good

Fear of exposure in the dispute settlement system

Part 1 Why do Members not notify?

1. Duly notified fisheries subsidies could be presumed to be non-actionable

or at least be more difficult to challenge (TN/RL/W/260)

• Rationale: having information matters more than laying basis for dispute.

2. Exception to subsidies disciplines if fisheries-related information was

“notified to the relevant body of the FAO, where it shall be subject to peer

review prior to the granting of the subsidy.” (TN/RL/W/213)

• FAO peer review only of things like the quality of the country’s fishery management system

• Review of the subsidy as such in the SCM Committee.

Ways to incent fisheries subsidies notification

Hypothesis: notified measures, especially those that are

discussed in a committee, are rarely subject to a dispute.

Only one dispute on fisheries subsidies: DS489 China—

Demonstration Bases (2015)

• DSB was informed on Apr. 16, 2016, that China and the US reached an agreement regarding the dispute through a MOU

Is notification risky?

In 2015 only a handful notifications with fish connection

CanadaChinaHong KongMacaoChinese TaipeiEuropean

Union

JapanKoreaMexicoMontenegroNew ZealandPeruUnited States

and so far as we know, none of these notifications led to a dispute

Source: WT/CTE/EDB/15

United States has submitted extensive reverse notifications of

Chinese and Indian subsidies. Why don’t others?

Few other Members have the capacity to generate such detailed

analysis of another Member’s policies.

And few have an incentive to provide this under-supplied public

good

Glass house syndrome impedes counter notification

Can/should counter notification be encouraged?

SCM Committee could hold a dedicated special session on fisheries subsidies

Experts would be encouraged to attend from capitals

Relevant international organizations including RFMOs could be observers,

and suppliers of reports

Working practice could also draw on experience in other committees

• Written questions in advance

• Database of answers

Results could available to public in accessible form

Part 2: One possibility for surveillance

Committee review could be supported by a WTO Secretariat report based on

Members' notifications and by information from other international

organizations.

Data for the dedicated session on fisheries subsidies

Data are not neutral: Information available depends on an organization’s

operational and analytic purposes, and the definitions used

FAO, OECD and RFMOs data will not necessarily use WTO definition—more

comprehensive than needed for fisheries subsidies disciplines?

A role for other international organizations?

Secretariat draws on wide range of information

Seeks “verification” of data obtained from non-official sources

Helpful for countries unsure of what to notify, or with capacity problem

But it’s not a formal “notification”

Will need to use the TPR method

If good background documents

If experts come from capitals

If many members ask questions

Then committee review could be valuable contribution to

institutional learning about fisheries subsidies

Benefits of dedicated session

www.ictsd.org

Sebastian MATHEW, ICSF


Session 3: Looking beyond MC11: Implementing new rules

SEBASTIAN MATHEW

How could key disciplines in the proposals in the WTO fisheries negotiations be implemented in the context of small-scale fishing in South Asia?

• Marine capture fishery production- 5.4 million tonnes (Bangladesh, India, Maldives, Pakistan, Sri

Lanka) two-thirds from India—about 6.27 per cent of the global capture fishery production

• Number of fishers dependent on fisheries for a livelihood: 1.5 million fishers (two-thirds in India)

• Fishing fleet: nearly 300,000 vessels (Bangladesh: 52,000 vessels; India: 200,000 vessels; Maldives:

900 vessels; Pakistan: 10,000 vessels; and Sri Lanka: 32,000)

• All South Asian countries have ratified the 1982 United Nations Law of the Sea Convention

• Sri Lanka has ratified the 1993 FAO Compliance Agreement

• All South Asian countries except Pakistan have ratified 1995 UN Fish Stocks Agreement

• All South Asian countries are members of IOTC (Bangladesh, a cooperating non-Contracting Party)

• Maldives and Sri Lanka are Parties to the 2009 FAO Agreement on Port State Measures to Prevent,

Deter and Eliminate IUU Fishing (PSMA)

Marine Fisheries South Asia

• Small-scale fishing vessels fish within sovereignty and other areas of national jurisdiction, in the

high seas, as well as in areas under sovereignty and jurisdiction of other States

• Small-scale fishing vessels on IUU negative list

• Small-scale fishers associated with IUU fishing in areas under national jurisdiction of other States

• Small-scale fishing vessels undertaking IUU fishing in waters within the national jurisdiction (all

South Asian countries except Maldives)

Small-scale fishing and IUU fishing

• NPOA-IUU to be developed in South Asia (except Sri Lanka)

• Performance of flag State duties needs to improved (in regard to fishing vessel registration;

authorization to fish as well as denial of authorization; catch reporting; marking and identification of

fishing vessels and gear; maritime safety; working conditions and living conditions on board fishing

vessels; protection of the maritime environment; and conservation and management measures)

• Rights of the coastal State to be better exerted (lack of comprehensive and effective MCS regimes,

e.g., no VMS coverage, preventing vessels without proper registration and authorization to fish in its

EEZ)

• Adoption of effective port State measures

• Better compliance with RFMO measures (sharing information, etc.)

Addressing IUU fishing of small-scale fishing Vessels

• Remove fragmentation of fisheries legislation (e.g., no EEZ fisheries legislation in some countries for

domestic fishing vessels, including small-scale fishing vessels, consistent with international

obligations)

• Improve awareness in the fishing industry about the State responsibilities in relation to LOSC,

UNFSA, CCRF, IPOA-IUU, PSMA, etc.

• Move flag States and coastal States as well as the fishing industry from a stand-alone, rights-based

regime also to a duty-bearing regime, consistent with international obligations

• Properly crafted fisheries subsidies disciplines can contribute to improved outcomes in relation to

effective fisheries conservation and management measures under flag State, coastal State and port

State regimes

Addressing IUU fishing of small-scale fishing vessels 2

• Difficult to segregate fish stocks according to those caught only by large-scale fishing vessels from

those caught only by small-scale fishing vessels, especially in tropical multispecies fisheries

(although some species are caught only by specific fishing methods irrespective of size)

• Existing legislation in South Asia do not recognize terms such as “overfishing”, “overfished”, etc.

• No agreed national criteria for determining the status of exploitation of fish stocks (levels of

historical stock size not estimated; it would, however, be complex and onerous)

• Fishing effort for highly migratory fish stocks such as tuna and tuna-like species, pomfrets, oceanic

sharks, etc. can be planned based on the determination of underfished, fully fished or overfished

status of stocks, but more demanding for other species In tropical multispecies fisheries

Prohibition of subsidies to fish stocks already overfished

• How to deal with the biological unity of stocks?

• Need to target overcapacity and overfishing in the entire range of distribution of fish stocks

• All fishing in marine waters up to the limit of the territorial sea is regulated by national and

subnational legislation in South Asia (de jure measures to be made consistent with international

obligations and made into better de facto measures to prevent and eliminate overcapacity and

overfishing and to ensure that the level of fishing effort does not undermine the sustainability of

fisheries resources)

• Poor implementation of legislation in internal waters, archipelagic waters and the territorial sea can

exacerbate fishing pressure in the EEZ

• Disciplining subsidies to fishing vessels in the EEZ may exacerbate fishing pressure in the territorial

sea, internal waters and archipelagic waters

Exempting the territorial sea from the application of the subsidies disciplines

• A transition period following the entry into force of this Agreement for granting or maintaining

subsidies to IUU fishing including small-scale fishing vessels may be subject to SDG 14.4 (“By 2020,

effectively regulate harvesting and end overfishing, illegal, unreported and unregulated fishing and

destructive fishing practices…”)

• Fish stocks that are below the levels that can produce maximum sustainable yield as determined by

their biological characteristics should be considered as overfished stocks (SDG 14.4)

• A transition period following the entry into force of this Agreement for granting or maintaining

subsidies to overfished stocks may need more time which needs to be worked out in consultation

with scientists and fishery stakeholders

Transition period under S&DT

www.ictsd.org

Dr Amadou TALL, Independent consultant



AMADOU TALL

The waters off West Africa support some of the richest concentration of marine life

in the world. Fish, not only source of foreign exchange for a number of financially

strapped coastal states, but generally provide the malnourished region with much

needed protein (400 million in Africa) (FAO, 2013)

12.3 million employed in Africa of which 1.5 million in West Africa

Total value added from fisheries and aquaculture = US$ 24.0 billion, 1.25% of totalGDP and 6% of the GDPA. (FAO-NEPAD (2013))

1.7 million tons caught off West Africa, per capita 10 kg in 2012. Given thepopulation growth rate need for 1.6 to 2.6 million tons/ year by 2030 (Standing A,

2017)

Small-scale sector, artisanal fishing methods undertaken by Africans to supplylocal markets, although some fish caught is traded regionally and internationally.

Overview of African Fisheries

Large-scale sector: large-scale industrial vessels owned by foreign companies 60%of annual catches (EU, Russia, China, South Korea, and Japan etc.).

Foreign Vessels operate under short-term licenses (e.g. EU-SFPA with 12 Africancountries or a charter basis or outside: a number of foreign-owned vesselsreflagged to local countries, or joint venture companies. (Standing A, 2017)

Heavy and unrestrained exploitation of the fish by non-african vessels poses agrowing threat to West African fishery resources (Some of the main commercialspecies are in dangers of depletion. (FAO,2011)

A marked decline in these fisheries (Belhabib et al., 2012c, 2016; Belhabib and

Pauly, 2015) would further weaken the economies of several West African states.Destruction of a valuable supply of protein would be a grave loss to this fooddeficient region.

Overview of African Fisheries

https://www.frontiersin.org/articles/10.3389/fmars.2017.00050/full#B7



Worldwide subsidies US$35 billion of which US$20 billion directly contributing tooverfishing. Africa least subsidized fisheries compared to other regions (2% landedvalue). (Standing A, 2017)

Structural crisis in fisheries globally is compounded in Africa by the limitedcapacity of many coastal states to manage and monitor foreign fishing

Operations of foreign fishing companies in Africa to sustain supply were possiblethrough considerable subsidies

Capacity-enhancing subsidies increase profits artificially, they are stimulating this“race to fish” within the industry.

Landings declining caused by both overfishing and climate change.

It is unlikely that fishing by foreign vessels would persist at its current intensity inAfrica if subsidies were phased out.

Subsidies

- Prohibition on subsidies to IUU fishing

- Identification by RFMO vessel lists (and the RFBs Sub Regional Commission for Fisheries (SRFC) and Fisheries Committee for the West African Countries (FCWC)

- Identification by national vessel lists / determinations

- Prohibition on subsidies to overfished stocks

- Prohibitions of subsidies that contribute to overcapacity and overfishing, capital and operating costs, with S&DT exceptions. (Consult the work of the RAFISMER: Network of the National Fisheries and Research Institutes of ATLAFCO region 22 countries)

Subsidies: Possible rules under discussion

IUU fishing is heavily implicated in overfishing in West Africa

Value of IUU fishing is estimated at US$ 1.3 billion; Senegal lost Senegal lost US$300million or 2% of its GDP to IUU fishing in 2012. Guinea US$105 million(30% of legalreported catches (; Sierra Leone US$ 29 million and Liberia US$12 million (DoumbouA. and al, 2017)

Overexploitation of West Africa’s fishery resources has produced devastating social,economic and human consequences and IUU fishing is heavily implicated.

______________________________________________________________________________________________________________________

INITIATIVES TO FIGHT IUU FISHING IN WEST AFRICA

WARFP: objective is to strengthen the capacity; govern and manage targetedfisheries, reduce illegal fishing, and increase local value added to fish;

FAO/CECAF: developing national capacity and promote bilateral, sub-regional andregional coordination to strengthen Port State Measures Agreement to Fight IUU

Illegal, Unreported, Unregulated (IUU) Fishing

Identification by RFMO vessel listing

• Most likely to affect large-scale vessels fishing outside EEZ; even if under West African flags, usually owned by foreign interests.

• West African governments more likely to be flag states than subsidisers of vessels on relevant lists; role in due process of RFMO listing important

• Stopping subsidies to worst offenders could support national efforts to stop uncontrolled fishing by foreign fleets (e.g. Liberia’s ban on industrial trawlers in its EEZ)

Implementing rule against subsidies to IUU

Identification of IUU activity by national governments• Requires monitoring, control, surveillance and enforcement of national laws.

• Consistent with national efforts to address IUU fishing e.g. Also consistent with, and supported by, regional policy efforts

African Union Policy Framework Reform Strategy for Fisheries and Aquaculture (PFRS): underscores the importance of promoting effective and sustainable regional MCS systems in all regions of the continent.

NEPAD: set up a “Stop Illegal Fishing” (SIF) Working Group, is working to promotecoherent policy reform across Africa

Identification of vessels by coastal states politically sensitive but could help to involve

subsidizing government in monitoring and control efforts.


Implementation will require continued regional cooperation and support from partners, e.g.

NORAD: support to the development of cooperation in fisheries MCS and enforcement and

to capacity building of enforcement agencies in the Fishery Committee for West African

Countries (FCWC).

EFCA: European Fisheries Control Agency has taken part in such regional operation at sea to

control vessels fishing in the EEZ of Gambia, Senegal, Guinea Bissau and Guinea.


Guinea-Bissau: 250 large-foreign vessels caught 390,000 tons in 1989, but in 2010only 100 large-foreign vessels were in operation and catches were estimated to bedown to 73,000 tons (Standing, A. 2017).

Senegal’s open access regime and subsidies to engines for artisanal fisheriescontributed to the depletion of marine resources and pushed the Senegalese fishfurther offshore, in the neighboring countries of Guinea-Bissau and Mauritania.

Mauritania total demersal biomass decreased by ∼75% since 1982 and fishingeffort 30% higher than that at maximum sustained yield (40% higher for finfish).(Meissa, B. and D. Gascuel, 2015)

Liberia enforced a ban on industrial trawling in 2011. The ban extended a zone atsea which only local small-scale fishers could exploit.

Overexploited stocks in West Africa

National assessments of state of stocks often weak, but obligation could be implemented on the

basis of independent FAO advice while national capacity is built, e.g.:

Scientific advice for –

Deep-water rose shrimp Senegal &Gambia for 2016: Common octopus - Cap Blanc stock (21°N - 16°N)

Implementing rule against subsidies to overfished stocks

Source: FAO FIRMS/CECAF 2016

State & Trend Descriptors

Partner FIRMS

Exploitation

rate

Fcur/F0.1 = 130% ;

Fcur/FMSY = 117%Not applicable

Abundance

level

Bcur/B0.1 = 84% ;

Bcur/BMSY = 92%Not applicable

FAO Categories

Exploitation

stateOverexploited

State & Trend Descriptors

Partner FIRMS

Exploitation

rate

Fcur/F0.1 = 82% ;

Fcur/FMSY = 74%Not applicable

Abundance

level

Bcur/B0.1 = 116% ;

Bcur/BMSY = 127%Not applicable

FAO Categories

Exploitation

stateNot fully exploited

The growing extinction threat to fish off west Africa undermines food security across the region,impacting on progress towards the first two SDGs and to undermining SDG14 on life under water.

Subsidies to fisheries result in production and trade distortions, lead to unsustainable fishingpractices and overexploitation;

Implementing broader WTO agreement on harmful fisheries subsidies could support measures ofAU and West Africa to reduce negative impact of fisheries subsidies (IUU) and overfishing andbuild sustainable fisheries:

Pan-African Policy Framework and Reform Strategy (PFRS) encourages shift from harmfulsubsidies to value chain development including value added products;

Implementing Fisheries Management Plans (FMPs) based on EAF

Fisheries Improvement plan (FIPs)and Ecolabelling certification

Implementing PSMA

Improve fisheries access agreements through regional Sustainable Fisheries agreements

Implementing the MoU between ECOWAS/ECCAS to fight maritime crimes and IUU fishing

Introducing quotas systems

Fisheries subsidies disciplines and implications for West Africa

THANK YOU FOR YOUR KIND ATTENTION

www.ictsd.org

Enrique SANJURJO, WWF Mexico



ENRIQUE SANJURJO

An overview of the Mexican fisheries 1/3

Industrial

Small scale

Total

Wild capture

Aquiculture


At maximum capacity

OverfishedPotential for development


7 of each 10 pesos of government expenditure in the fishing sector are

subsidies

Expenditures inFisheries

SubsidiesInvestmentAdministrationRegulationEnforcementOthers

12%

19%

22%

27%

20%

InfrastructureFuelModernizationSmall scale fisheries *Others **

Subsidies 2016

* Sanitary management, labor safety, value chain, law compliance

** Value chain, enforcement, fishing license order, buybacks

An overview of the Mexican fishing subsidies 1/2

An overview of the Mexican fishing subsidies 2/2

IATTC resolution on IUU provides a list that could be used for implementing the prohibition

Ratification of the FAO Agreement on Port State Measures to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing.

National regulations – In the Mexican criteria for subsidies there are rules of non-eligibility for those that don’t comply with the rules of use of subsidies. It is possible to require not having IUU reports for having access to fishing subsidies

Gradual redirection of fishing subsidies - In Mexico there are domestic discussions on the effectiveness of fishing subsidies for promoting fisheries.

Possible ways to implement prohibition on subsidies to IUU

Thank you

[email protected]

16 november 2017 | geneva, switzerland · 16 november 2017 | geneva, switzerland session i: options...

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