Additional
provisions on fisheries subsidies
DRAFT
General Council Decision
Submission from Iceland*
The following submission, dated 11 July 2024,
is being circulated at the request of the delegation of Iceland.
_______________
The General
Council;
_Having regard to
paragraph 1 of Article X of the Marrakesh Agreement Establishing the World
Trade Organization (the "WTO Agreement");
Conducting
the functions of the Ministerial Conference pursuant to paragraph 2 of Article
IV of the WTO Agreement;
Recalling the mandate
given to Members at the Twelfth Session of the WTO Ministerial Conference in
paragraph 4 of the Ministerial Decision on the Agreement on Fisheries Subsidies
(_WT/MIN(22)/33 – _WT/L/1144), that the Negotiating Group on Rules continue
negotiations based on the outstanding issues in documents _WT/MIN(21)/W/5 and _WT/MIN(22)/W/20 with a view to making
recommendations to the Thirteenth Session of the WTO Ministerial
Conference for additional provisions that would achieve a comprehensive
agreement on fisheries subsidies, including through further disciplines on
certain forms of fisheries subsidies that contribute to overcapacity and
overfishing, recognizing that appropriate and effective special and
differential treatment for developing country Members and least developed
country Members should be an integral part of these negotiations;
Noting that the
Ministers agreed as part of the aforementioned Decision to adopt the Protocol Amending the WTO
Agreement Establishing the World Trade Organization, Agreement on Fisheries
Subsidies, done at Geneva on 17 June 2022 (the "2022 Protocol"),
which has not yet entered into force;
Considering
that Article 12 of the Agreement on Fisheries Subsidies annexed to the 2022 Protocol
provides that,
if comprehensive disciplines are not adopted within four years of the entry
into force of that Agreement, and unless otherwise decided by the General
Council, that Agreement shall stand immediately terminated; and
Recognizing
that, by
adopting the attached Protocol amending the WTO Agreement, Members have adopted
the additional provisions that, together with the Agreement on
Fisheries Subsidies annexed to the 2022 Protocol,
achieve a comprehensive agreement on fisheries subsidies in accordance with the
mandate given to
Members at the Twelfth Session of the WTO Ministerial Conference held in Geneva
in 2022 in paragraph 4 of the Ministerial Decision on the Agreement on
Fisheries Subsidies, and constitute the comprehensive
disciplines referred to in Article 12 of the Agreement on Fisheries Subsidies;
Decides as follows:
1. The
Protocol amending the WTO
Agreement, _attached
to this Decision (the "Protocol") is hereby adopted and submitted to
the Members for acceptance.
2. The Protocol shall hereby be open for acceptance by Members. Members that, at the time of
accepting the attached Protocol, have not yet accepted the 2022 Protocol, can accept
the attached Protocol only together with the 2022 Protocol.
3. The Protocol shall enter into force in accordance with the provisions
of paragraph 3 of Article X of the WTO Agreement.
_______________
ATTACHMENT
Protocol amending the marrakesh agreement
establishing
the world trade organization
ADDITIONAL provisions
on FISHERIES subsidies
Members of the World Trade
Organization;
Having regard to the Decision of the General
Council in document WT/L/…, adopted pursuant to paragraph 1 of Article
X of the Marrakesh Agreement Establishing the World Trade Organization
("the WTO Agreement");
Hereby agree as
follows:
1. Annex
1A to the WTO Agreement shall, upon entry into force of this Protocol pursuant
to paragraph 4, be amended by the insertion of the Additional
Provisions on Fisheries Subsidies, as set out in the Annex
to this Protocol, to be placed before
the Agreement on Safeguards.
2. Reservations may not
be entered in respect of any of the provisions of this Protocol.
3. This
Protocol is hereby open for acceptance by Members. Members that, at the time of accepting this
Protocol, have not yet accepted the Protocol
Amending the WTO Agreement Establishing the World Trade Organization, Agreement
on Fisheries Subsidies, done at Geneva on 17 June 2022 ("the 2022 Protocol"), can accept the
present Protocol only together with the 2022 Protocol.
4. This Protocol shall
enter into force in accordance with paragraph 3 of Article X of the WTO Agreement.[1]
5. This
Protocol shall be deposited with the Director-General of the World Trade
Organization who shall promptly furnish to each Member a certified copy thereof
and a notification of each acceptance thereof pursuant to paragraph 3.
6. This
Protocol shall be registered in accordance with the provisions of Article 102
of the Charter of the United Nations.
Done at Geneva this […] day of […] two thousand and twenty-four, _in a single copy in the English,
French and Spanish languages, each text being authentic.
_______________
annex
ADDITIONAL provisions on FISHERIES
subsidies
Article A: subsidies COntributing to overcapacity and overfishing
A.1[2] No Member shall grant or maintain subsidies
to fishing or fishing related activities that contribute to overcapacity or
overfishing. For the purposes of this paragraph,
subsidies that contribute to overcapacity or overfishing include[3]:
(a)_
subsidies to
construction, acquisition, maintenance, modernisation, renovation, or upgrading
of vessels;
(b)_
subsidies to the
purchase or maintenance of machines and equipment for vessels (including
fishing gear and engine, fish-processing machinery, fish-finding technology,
refrigerators, or machinery for sorting or cleaning fish);
(c)_
subsidies to the
purchase/costs of fuel, ice, or bait;
(d)_
subsidies to
costs of personnel, social charges, or insurance;
(e)_ income support of vessels or operators or the workers they employ except for such subsidies implemented for subsistence purposes
during seasonal closures;
(f)_
price support of
fish caught;
(g)_
subsidies to
at-sea support; and
(h)_
subsidies
covering operating losses of vessels or fishing or fishing related activities.
A.1.1 (a) A subsidy is not inconsistent with Article
A.1 if the subsidizing Member demonstrates that measures are implemented to
maintain the stock or stocks in the relevant fishery or
fisheries at a biologically sustainable level.[4] Such demonstration shall include an explanation of how those measures
ensure, or can reasonably be expected to ensure, that the stock or stocks in
the relevant fishery or fisheries are maintained at a biologically sustainable
level and shall be made through a notification by the subsidizing Member as
soon as practicable and no later than six months after a new
subsidy program comes into effect, and thereafter in the Member's regular
notifications of fisheries subsidies under Article 25 of the Agreement on Subsidies
and Countervailing Measures (SCM Agreement) and Article 8.1 of the
Agreement on Fisheries Subsidies (AFS).[5], [6]
(b) With the exception of Members covered by Article B.5 and
notwithstanding Article A.1.1(a), for a developing country Member that is:
(i)_ neither amongst the 10 largest
providers of fisheries subsidies by annual aggregate level of fisheries
subsidies as notified to the Committee on Fisheries Subsidies (the Committee)
under Article C.3;
(ii)_ nor significantly engaged[7] in fishing or fishing related activities in any area farther than one
Food and Agriculture Organization of the United Nations (FAO) Major Fishing
Area[8] beyond the one(s) adjacent to the Member's coast[9];
a subsidy is not inconsistent with Article A.1 if the subsidizing
Member demonstrates through its regular notifications of fisheries subsidies
under Article 25 of the SCM Agreement and Article 8.1 of the AFS that
measures are implemented to maintain the stock or stocks in the relevant fishery or
fisheries at a biologically sustainable level.[10], [11]
(c) The
information[12] provided in the notification referred to in Article A.1.1(a) and
Article A.1.1(b) shall enable other Members to effectively evaluate the
subsidy according to the conditions set out in Article A.1.1 and shall
include the following for the relevant fish stock or stocks:
(i)_ conservation and management
measures in place;
(ii)_ status of the fish stocks[13] (e.g., overfished, maximally
sustainably fished, underfished, or unknown) and the reference points used, and
whether such stocks are shared[14] with any other Member or are
managed by a Regional Fisheries Management Organization or Arrangement (RFMO/A)[15];
(iii)_ catch data by species or group of
species[16] as compiled by a Member; and
(iv)_ information on the fleet capacity
as compiled by a Member.
A.1.2 Any Member may, at any time,
seek clarification regarding the notifications and information referred to in
this Article. If a Member seeks such clarification, or considers that a
notification or information under this Article has not been provided, the Member
may bring the matter to the attention of such other Member or to the Committee.
Where a Member has brought such a matter to the attention of the subsidizing
Member or the Committee, the subsidizing Member shall respond to the request as
quickly as possible in writing and in a comprehensive manner.
A.2 (a) Members shall refrain, to the greatest
extent possible, from granting or maintaining subsidies contingent upon, or
tied to, actual or anticipated fishing or fishing related activities in areas
beyond the subsidizing Member's jurisdiction (whether solely or as one of
several other conditions), unless the requirements in subparagraph (b) are met.[17], [18]
(b) For any subsidy referred to in subparagraph
(a), Article A.1 shall apply. Such a subsidy is not inconsistent with Article
A.1 if the subsidizing Member also:
(i)_ makes the demonstration required
under Article A.1.1(a) for the relevant subsidy[19]; and
(ii)_ in addition to the information
referred to in Article A.1.1(c), provides information on the conservation and
management measures governing the subsidized fishing or fishing related
activities such as national legislation or competent RFMO/A(s), and provide the
following information for the relevant subsidy:
(1)_ the amount of the subsidy;
(2)_ fleet capacity in the fishery for which the
subsidy is provided; and
(3)_ catch data by species or group of species in the
fishery for which the subsidy is provided.[20]
(c) The
Committee on Fisheries Subsidies shall assess the information provided under
Article A.2(b)(ii) in
accordance with the cycle of regular notifications under Article 25 of the SCM
Agreement and Article 8.1 of the AFS, report on the total aggregate value of
such subsidies, identify trends and the impact on small island developing state
Members and least-developed country (LDC) Members, and report such findings to
the Council for Trade in Goods.
Article B:
Special and Differential Treatment
B.1 Article A.1 shall not apply to LDC Members. A
Member that graduates from the LDC category may grant or maintain the subsidies
referred to in Article A.1 to fishing or fishing related activities for a
maximum of four years after the date on which the decision of the UN
General Assembly to graduate that Member from the "Least Developed
Countries" category becomes effective.[21]
B.2 A developing country Member[22] may grant or maintain the
subsidies referred to in Article A.1 if its share of the annual global
volume of marine capture production does not exceed 0.8 per cent as
per the most recent published FAO data as circulated by the WTO Secretariat. A Member remains exempted until its share exceeds this threshold for
three consecutive years. It shall be re-included in Article B.2 when its share
of the global volume of marine capture production falls back below the threshold for three consecutive years.
B.3 (a) A developing country Member not covered by
the special and differential treatment provided for in Article B.1 or Article
B.2 may grant or maintain the subsidies referred to in
Article A.1 to fishing or fishing related activities within its EEZ, and
in the area and for species under the competence of an RFMO/A through which the
Member is authorized to engage in such fishing or fishing related activities,
for a maximum of 10 years after the entry into force of these Additional Provisions.[23] A developing country Member
intending to invoke this provision shall inform the Committee in writing within
one year of the date of entry into force of these Additional Provisions.
(b) Subsidies granted or maintained under
subparagraph (a) shall be exempt from actions based on Article A.1 and Article
10 of the AFS for a period of two additional years after the end of the period
referred to in the first sentence of subparagraph (a).
(c) A developing country Member to which
subparagraph (b) applies may request no more than two two-year extensions of
the period referred to in that subparagraph through the Committee. The Committee
shall take into account the specific circumstances of that Member, and shall
give due and sympathetic consideration to developing country Members that
demonstrate concrete progress toward implementing Article A.1.
B.4 (a) A developing
country Member may grant or maintain the subsidies referred to in Article A.1
for small scale and artisanal fishing or fishing related activities that are
primarily low income, resource poor or livelihood in nature[24] as operationally defined
by that Member.
(b) A
developing country Member availing itself of subparagraph (a) shall, in its
regular notification under Article 25 of the SCM
Agreement and Article 8.1 of the AFS, notify the subsidies provided under this
provision and provide its operational definition(s) of the fishing or fishing
related activities referred to in subparagraph (a), and promptly inform the
Committee of any modifications thereafter.[25]
B.5 Subsidizing developing
country Members are encouraged to make a binding commitment not to avail
themselves of Article B.1, Article B.2, Article B.3, and Article B.4.[26]
Article C: Notification and
transparency[27]
C.1 Article 25 of the SCM Agreement and Article 8
of the AFS shall apply to these Additional Provisions, with the
additions provided for in Article A, Article B, and this Article.
C.2 Each Member
shall notify to the Committee in writing on an annual basis of:
(a)_ any vessels and
operators for which the Member has information that reasonably indicates the
use of forced labour, along with relevant information to the extent possible;
and
(b)_ a list of any agreements in force, or existing arrangements, for
obtaining access to the fisheries
resources of another coastal Member or non-Member, and
such notification shall consist of:
(i)_
the titles of the agreements or arrangements; and
(ii)_ a list of their parties.
A Member may meet this obligation by providing an up-to-date electronic
link to the Member's or other appropriate official web page that sets out this
information. This notification may be
presented either individually or jointly by Members who are parties to an
agreement or arrangement.
C.3 Each Member shall notify to the Committee
information that is necessary for the determination of its annual aggregate
level of fisheries subsidies, building upon its existing notifications under
Article 25 of the SCM Agreement and Article 8.1 of the AFS. The first
notification of this information shall be submitted not later than
240 days from the date
of entry into force of these Additional Provisions. Thereafter, this
information shall be provided in the Member's regular notifications of
fisheries subsidies under Article 25 of the SCM Agreement and Article 8.1
of the AFS.[28]
Each Member shall submit this information through a template the content and
form of which shall be previously adopted by
Members.
C.4 Within one year from the date of entry into
force of these Additional Provisions, the WTO Secretariat shall compile and
make publicly available a list of Members and their respective annual aggregate
levels of fisheries subsidies, on the basis of the information referred to in
Article C.3. The list shall be ranked in descending order by annual aggregate
level of fisheries subsidies. The list shall be updated in accordance with the
cycle of regular notifications under Article 25 of the SCM Agreement and Article
8.1 of the AFS. For the purpose of establishing the list, the WTO Secretariat
may request technical clarifications from the subsidizing Member concerning the
notified subsidies. The Committee shall review the list at its regular
meetings.
C.5 Nothing in these Additional Provisions
requires the provision of confidential information, including confidential
business information.
Article D: Other Overcapacity- and overfishing-Related Provisions
D.1 (a) Not later than five years after the date of entry into force of these
Additional Provisions, the Committee shall review their operation. This review
shall assess, in particular, the overall impact of these Additional Provisions
on overcapacity and overfishing, distant water fishing or fishing related
activities, aggregate levels of fisheries subsidies, and aggregate levels of
subsidies contingent upon, or tied to, actual or anticipated fishing or fishing
related activities in areas beyond national jurisdiction, and whether these
Additional Provisions have increased economic benefits to small island
developing state Members and LDC Members from the sustainable use of marine
resources. The review shall also identify any necessary modifications to
further strengthen the operation or improve the effectiveness of these
Additional Provisions, taking into account their objectives and UN Sustainable
Development Goals target 14.6 and target 14.7. Such modifications may include
quantitative limitations or reduction commitments to subsidies of the major
subsidizers. If either the aggregate levels of subsidies or aggregate levels of
subsidies contingent upon, or tied to, actual or anticipated fishing or fishing
related activities in areas beyond national jurisdiction have increased, the
Committee may recommend quantitative limitations or reductions unless it
determines that other modifications are more appropriate. In considering any
modifications to these Additional Provisions, the Committee shall take into
account the information provided under Article A.2 (c) and Article C.3.
(b) The Committee shall report to the Council for Trade in Goods the
outcomes of this review, including any resulting proposals to amend the text of
these Additional Provisions. The outcomes of this review and any
recommendations to further strengthen the operation or improve the
effectiveness of these Additional Provisions shall be considered at the first
session of the Ministerial Conference that follows the conclusion of the
review. Thereafter, these issues shall be addressed in the periodic reviews
under Article 9.4 of the AFS on the basis of the modalities in subparagraph (a).
D.2 Before granting a subsidy, and
notwithstanding these Additional Provisions, a Member shall consider the consequence of the subsidy on overcapacity or
overfishing.
ARTICLE E: RELATIONSHIP WITH AGREEMENT ON
FISHERIES SUBSIDIES
E.1 These
Additional Provisions, together with the AFS,
constitute the comprehensive disciplines referred to in Article 12 of the AFS
and achieve the comprehensive agreement on fisheries subsidies in accordance
with paragraph 4 of the Ministerial Decision on the AFS adopted at the Twelfth
Session of the WTO Ministerial Conference.[29]
Other than as provided under Article E.1, the Additional Provisions do not
modify or nullify any rights or obligations as provided by the AFS.
E.2 Article 1, Article 2, Article 6, Article 7, Article 8, Article 9,
Article 10, and Article 11 of the AFS shall apply, mutatis mutandis, to these Additional Provisions[30],
in addition and without prejudice to any cross-references in these Additional
Provisions to specific provisions of the AFS.
__________
* This document
combines previously-issued documents _TN/RL/W/279
and _TN/RL/W/280.
[1] For the purposes of calculation of acceptances
under Article X:3 of the WTO Agreement, an instrument of acceptance by the
European Union for itself and in respect of its member States shall be counted
as acceptance by a number of Members equal to the number of member States of
the European Union which are Members to the WTO.
[2] For greater certainty, Article A.1
does not apply to subsidies to the extent they regard stocks that are
overfished.
[3] For greater certainty, the
subsidies listed in this provision shall not be deemed to contribute to
overcapacity or overfishing when granted or maintained in accordance with
Article A.1.1.
[4] For the purposes of these Additional
Provisions, the term "biologically sustainable level" is the level determined by a
coastal Member or a coastal non-Member having jurisdiction over the area where
the fishing or fishing related activity is taking place, using reference points
such as maximum sustainable yield (MSY) or other reference points, commensurate
with the data available for the fishery; or by a relevant RFMO/A in areas and
for species under its competence. Members acknowledge that the biologically
sustainable level of stocks may be influenced by factors beyond the control of
the subsidizing Member.
[5] A coastal Member that
is not the subsidizing Member shall not be required to provide data to enable
the subsidizing Member to invoke Article A.1.1.
[6] For greater certainty, a Member's
existing subsidies are to be included in such regular notifications as from the
date of entry into force of these Additional Provisions.
[7] For the purposes of these
Additional Provisions, a Member shall be considered to be significantly engaged
in the fishing or fishing related activities referred to in this subparagraph
if the combined volume of marine capture production of its vessels or operators
in the relevant FAO Major Fishing area(s) exceeds 4 per cent of the total
volume of marine capture production of that Member. A flag State that does not
subsidize the activities described in this provision shall not be deemed to be
engaged in such activities.
[8] As delineated in the FAO Major
Fishing Area map in effect at the time of adoption of these Additional
Provisions, as circulated by the WTO Secretariat.
[9] For the purposes of this subparagraph, if an FAO Major Fishing Area
that is adjacent to the Member's coast is directly connected
to another FAO Major Fishing Area through a maritime canal, the latter area
will be deemed to be one FAO Major Fishing Area beyond the one(s) adjacent to a Member's coast.
[10] A coastal Member that
is not the subsidizing Member shall not be required to provide data to enable
the subsidizing Member to invoke Article A.1.1.
[11] For greater certainty, a Member's
existing subsidies are to be included in such regular notifications as from the
date of entry into force of these Additional Provisions.
[12] For greater certainty, a Member is
free to supplement, revise, or correct its notifications. It is understood that
the demonstration called for under Article A.1.1(a) or Article A.1.1(b) may
include information contained in any supplemented, revised or corrected
notifications, as well as in written answers provided by the subsidizing Member
to written questions received as part of the review process set out in Article
A.1.2.
[13] A Member shall provide information
on the status of the assessed fish stocks based on the best scientific evidence
available to it.
[14] The term "shared stocks"
shall have the same meaning as in footnote 14 of the AFS.
[15] For greater certainty, for fish
stocks managed by an RFMO/A, status of the fish stocks provided by the Member
shall include available stock status information from the RFMO/A.
[16] For multispecies fisheries, a
Member instead may provide other relevant and available catch data.
[17] The mere fact that a subsidy is
granted or maintained to vessels or operators that may be engaged in fishing or
fishing related activities in areas beyond the subsidizing Member's
jurisdiction (e.g., fishing in a nearby Member's exclusive economic zone (EEZ)
pursuant to traditional or historical practices or arrangements or reciprocal
fisheries management and utilization arrangements, including relating to
migratory stocks) shall not for that reason alone be considered to be
contingent upon, or tied to, such fishing or fishing related activities.
[18] For a Member whose maritime zone
under national jurisdiction does not have a definitively determined EEZ, the
limit shall be that provided by international law, including the law of the
sea.
[19] For greater certainty, this
demonstration shall be made regardless of whether the subsidizing Member would
be otherwise covered by Article A.1.1(b) or Article B.
[20] For multispecies fisheries, a
Member instead may provide other relevant and available catch data.
[22] For greater certainty, this
includes developing
country Members that are
graduated LDC Members falling within the 0.8 per cent threshold after
the expiry of the transition period referred to in Article B.1.
[23] When
the FAO data circulated by the WTO Secretariat for the purpose of Article B.2
show for the first time that a Member's share of annual global volume of marine
capture production exceeds the threshold in Article B.2 for three
consecutive years, such that the Member is no longer covered by Article B.2,
Article B.3(b) and (c) shall apply mutatis
mutandis to that Member as from that date. If the date on which the
Member ceases to be covered by Article B.2 on this basis occurs during the
period referred to in the first sentence of Article B.3(a), the Member
shall benefit from the remainder of that period.
[24] For
greater certainty, the activities described in this paragraph do not include
industrialised fishing or fishing related activities. A range of
characteristics may be taken into account as guiding points when considering
"small scale and artisanal fishing or fishing related activities"
including: size of fishing vessel; level of motorisation; level of
mechanisation; type of fishing gear; refrigeration or storage on board; labour
or crew; ownership; time commitment (full time, part-time, seasonal); location,
distance, and duration of fishing trips; disposal of catch; utilization of
catch (level of processing, preservation, or value-add); and integration
into economy or management system.
[25] A
Member may meet this obligation by providing to the Committee an up-to-date
electronic link to the Member's or other appropriate official web page that
sets out this information.
[26] Such
binding commitments include statements made by eligible Members to […], such as those made
[placeholder for references to such binding commitments made before adoption of
these Additional Provisions] and will be recorded by the Council for Trade in
Goods and will be compiled and published publicly on the WTO website.
[27]Targeted
technical assistance and capacity building assistance to developing country
Members, including LDC Members, shall be available for the purposes of
implementing these Additional Provisions.
[28] In accordance with the
applicable periodicity of such notifications, including as provided for in
footnote 13 of the AFS.
[29] _WT/MIN(22)/33 – _WT/L/1144.
[30] For greater certainty, Article
10.2 of the AFS shall apply to consultations and the settlement of disputes
under Article A, and Article A shall not prevent a Member from granting a
subsidy for disaster relief in accordance with Article 11.1 of the AFS.