Additional
Provisions ON FISHERIES SUBSIDIES
draft text
Additional
Provisions ON FISHERIES SUBSIDIES
draft text
Note: This document is without prejudice to
any Members' positions or views, whether or not reflected herein.
_______________
Article A: subsidies COntributing to overcapacity and overfishing
A.1[1] 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[2]:
(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.[3] 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).[4],[5]
(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.4;
(ii)_ nor significantly engaged[6] in fishing or fishing related activities in any area farther than one
Food and Agriculture Organization of the United Nations (FAO) Major Fishing
Area[7] beyond the one(s) adjacent to the Member's territorial sea[8];
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.[9],[10]
(c) The information[11] 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[12] (e.g., overfished, maximally
sustainably fished, underfished, or unknown) and the reference points used, and
whether such stocks are shared[13] with any other Member or are
managed by a Regional Fisheries Management Organization or Arrangement (RFMO/A)[14];
(iii)_ catch data by species or group of
species[15] 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.[16],[17]
(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[18]; 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.[19]
(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
graduated LDC Member may grant or maintain the subsidies referred to in
Article A.1 to fishing or fishing related activities for a maximum of X years after a
decision of the UN General Assembly to graduate that Member from the
"Least Developed Countries" category.[20]
B.2 A developing country Member[21] 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 X years after the entry into force of these Additional Provisions.[22] 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[23] 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.[24]
B.5 Developing country Members
with competent fisheries management capabilities 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.[25]
Article C: Notification and
transparency[26]
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;
(ii)_ a list of their parties; and
(iii)_ to the extent possible, the full
text of the agreements or arrangements.
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 Notwithstanding Article 1 of the AFS, and to
the extent possible, each Member shall notify to the Committee in writing on an
annual basis of its fuel subsidies granted or maintained to fishing or fishing
related activities that are not specific within the meaning of Article 2 of the
SCM Agreement.
C.4 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
120 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.[27]
Each Member shall submit this information through a template the content and
form of which shall be previously adopted by Members.
C.5 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.4. 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.6 A Member may invoke Article A.1.1 or Article
B.4 only in respect of subsidies which it has notified to the Committee under
Article 25 of the SCM Agreement and Article 8.1 of the AFS.
C.7 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 shall 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.4.
(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.
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.[28]
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[29],
in addition and without prejudice to any cross-references in these Additional
Provisions to specific provisions of the AFS.
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[1] For greater certainty, Article A.1 does not apply to subsidies to
the extent they regard stocks that are overfished.
[2] 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.
[3] 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.
[4] 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.
[5] 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.
[6] 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 2 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.
[7] 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.
[8] For the purposes of this subparagraph, if an FAO Major Fishing Area that is adjacent to
the Member's territorial sea 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 territorial sea. For a coastal Member without
a territorial sea, the expression "a Member's territorial sea" in
this Article shall mean "a Member's jurisdiction".
[9] 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.
[10] 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.
[11] 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.
[12] A Member shall provide information on the status of the assessed
fish stocks based on the best scientific evidence available to it.
[13] The term
"shared stocks" shall have the same meaning as in footnote 14 of the
AFS.
[14] 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.
[15] For multispecies fisheries, a Member instead may provide other
relevant and available catch data.
[16] 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.
[17] 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.
[18] 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.
[19] For multispecies fisheries, a Member instead may provide other
relevant and available catch data.
[20] Article B.3(b) and (c) shall apply, mutatis mutandis, to a graduated LDC Member not covered by the special and differential
treatment provided for in Article B.2, from the
end of the period referred to in the second sentence of Article B.1.
[21] 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.
[22] 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.
[23] For greater certainty, the activities described in this
paragraph do not include significantly commercial 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.
[24] 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.
[25] 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.
[26]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.
[27] In
accordance with the applicable periodicity of such notifications, including as
provided for in footnote 13 of the AFS.
[28] _WT/MIN(22)/33
– _WT/L/1144.
[29] 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.