您現在的位置:首頁 / WTO議題 / 杜哈回合談判 / 貿易規則

General Council - Negotiating Group on Rules - 22 - 23 July 2024 - Analyzing the impact of the Chair's proposed OCOF disciplines under the additional provisions on fisheries subsidies on the sustainability of global marine fish stocks - Communication from India

ANALYZING THE IMPACT OF THE CHAIR'S PROPOSED OCOF DISCIPLINES
UNDER THE ADDITIONAL PROVISIONS ON FISHERIES SUBSIDIES
ON THE SUSTAINABILITY OF GLOBAL MARINE FISH STOCKS

COMMUNICATION FROM INDIA

The following communication, dated 11 July 2024, is being circulated at the request of the delegation of India.

 

_______________

 

 

1  INTRODUCTION

1.  As mandated by Sustainable Development Goal 14.6, negotiations on the overcapacity and overfishing (OCOF) pillar are guided by the objective of conserving global marine resources by prohibiting certain forms of fisheries subsidies that contribute to OCOF. Ensuring the sustainability of the global marine ecosystem has, therefore, been the primary driver of the OCOF subsidy negotiations.

2.  In order to accomplish its sustainability objective, the OCOF subsidy disciplines must rein in the activities of large-scale industrial fishing fleets involved in deep-sea and distant-water fishing (DWF). These fleets have historically exploited and depleted the fisheries resources and benefited from substantial government support and subsidies for their extensive operations. At the same time, the OCOF disciplines should not curtail the aspirations of smaller players looking to expand their fishing capabilities and develop their fisheries sector.

3.  This submission highlights potential issues with the latest draft text proposed by the Chair, _TN/RL/W/279 (hereinafter 'W/279'), which is largely based on a hastily concluded compromise during the closing stages of the 13th Ministerial Conference (MC-13). It illustrates how the draft text could undermine the sustainability goals of the OCOF pillar by failing to effectively discipline states that have historically subsidized their fisheries sector to develop large-scale industrial fishing capabilities. To this end, the submission focuses on two aspects of W/279: the two-tiered demonstration requirement under the sustainability clause and the disciplines on distant water fishing nations (DWFNs).

2  TWO-TIERED DEMONSTRATION REQUIREMENT UNDER THE SUSTAINABILITY TEST

2.1  ARTICLE A.1.1 OF W/279 IN A NUTSHELL

4.  Article A.1.1 of W/279 provides a carve-out from the OCOF subsidy prohibition if measures are implemented to maintain the stock at a biologically sustainable level (BSL). This is referred to as the sustainability test or the effects-based carve-out. It is rooted in the understanding that effective fisheries management can mitigate the harmful effects of subsidies on the health of fish stocks.

5.  However, unlike the previous iterations of the OCOF disciplines, such as _WT/MIN(21)/W/5 and _WT/MIN(22)/W/20, W/279 stipulates a peer review of Members' fisheries management practices, modelled on the Trade Policy Review Mechanism of the WTO. To elaborate, the Chair's draft text requires Members to notify the WTO of their measures to maintain the fish stocks at BSL. This is called the demonstration requirement and is two-tiered in nature. The first tier comprises all WTO Members, barring developing country Members falling under the second tier. The second tier comprises developing country Members who are neither among the top ten subsidisers of marine capture fisheries nor significantly engaged in DWF. Both the first and second-tier Members have to annually notify the WTO of their i) fish stock status, ii) conservation and management measures, iii) catch data, and iv) fleet capacity. In addition, the notification obligation of Members in the first tier gets triggered forthwith or within six months of introducing a new subsidy programme. Further, Members in the first tier have to provide an explanation regarding how their fisheries management measures would ensure, or could reasonably be expected to ensure, that the fish stocks are maintained at BSL. This two-tiered demonstration requirement's objective is to enable other Members to effectively evaluate whether the subsidy concerned is supplemented by adequate measures to maintain the fish stock at BSL.

2.2  PROBLEMS WITH THE TWO-TIERED DEMONSTRATION REQUIREMENT

6.  Article A.1.1 of W/279 provides the biggest loophole to continue unsustainable fishing operations. The following discussion highlights how Article A.1.1 actively encourages historical subsidizers who have built the necessary capacities to fish on a large and industrial scale.

i._     Article A.1.1(a) of W/279 permits the largest subsidizing countries to continue their subsidies, subject to meeting the sustainability test and fulfilling the corresponding notification requirements under Articles A.1.1(a) and (c). While most major fishing nations have established mechanisms to make such notifications, many developing countries operating on a smaller scale lack the requisite capacity to do so. This places a disproportionate burden on the latter and fails to hold accountable those states engaged in large-scale, industrial and unsustainable fishing practices. Moreover, during the negotiations, developing countries have consistently emphasized their capacity constraints in notifying subsidies under Article 25 of the Agreement on Subsidies and Countervailing Measures (SCM Agreement).

ii._    The inclusion under tier 1 of developing country Members that are among the ten largest providers of fisheries subsidies by annual aggregate level of fisheries subsidies is problematic. Developing countries with substantial fishing populations, extensive coastlines, or exclusive economic zones (EEZ) naturally provide higher aggregate subsidies. Holding states accountable based solely on their total subsidy value overlooks the intensity of subsidization. Therefore, any bifurcation of developing country Members should consider factors such as subsidy per fisher or subsidy per square kilometre of EEZ, which better reflect the intensity of subsidies. In addition to the above issues, presented below are certain other problems with the Chair's two‑tiered demonstration requirement:

7.  Including the two-tiered demonstration requirement with respect to the OCOF pillar seems to create an anomaly between the overfished and OCOF pillars. To elaborate, the sustainability test is also incorporated under the overfished pillar of the Agreement on Fisheries Subsidies (AFS). Article 4.3 of the AFS provides an exemption from the prohibition of subsidies regarding overfished stocks provided that "such subsidies or other measures are implemented to rebuild the stock to a biologically sustainable level". This is supplemented with a best endeavours transparency commitment under the AFS, requiring Members to notify the WTO "to the extent possible" of their i) fish stock status, ii) conservation and management measures, iii) information regarding subsidised vessels, and iv) catch data. By contrast, the sustainability test under the OCOF pillar of W/279 entails a stronger transparency commitment and a peer review of Members' fisheries management systems. This leads to a situation where there is stricter scrutiny of fisheries management for OCOF subsidies compared to subsidies for overfished stocks, despite the latter having a more severe impact on the health of fish stocks.

i._     As mentioned, Article A.1.2 of W/279 proposes a peer review of Members' fisheries management measures. However, the WTO is not a fisheries management organization and, therefore, does not have the competence to assess the effectiveness of Members' fisheries management measures. Further, developing countries lack the capacity to effectively examine the subsidies notifications and conservation and management measures of the traditional big subsidizers.

ii._    Article A.1.1 introduces ambiguity and lack of clarity through Footnote 3, which provides additional details on the sustainability carve-out. The footnote permits an escape clause by providing that "the biologically sustainable level of stocks may be influenced by factors beyond the control of the subsidizing Member." This provision offers enough flexibility for advanced industrial fishing nations to evade the imposed regulations.

3  DISCIPLINES ON DISTANT WATER FISHING NATIONS

8.  There has been a significant dilution in the Chair's text as regards the disciplines on DWFNs. Article A.2(a) of the Chair's previous draft text (_WT/MIN(24)/W/10) (hereinafter 'W/10'), circulated ahead of MC-13, prohibited all subsidies contingent upon or tied to actual or anticipated fishing in areas beyond the subsidising Member's national jurisdiction (hereinafter 'ABNJ). These subsidies were prohibited regardless of whether they contributed to OCOF. Further, unlike the prohibition of subsidies contributing to OCOF under Article A.1, this prohibition was not accompanied by a sustainability-linked carve-out.

9.  However, under Article A.2(a) of W/279, the prohibition of subsidies contingent upon or tied to actual or anticipated fishing in ABNJ has been made a best endeavours commitment, qualified by the phrase 'to the greatest extent possible'. Furthermore, unlike Article A.2(a) of W/10, the sustainability carve-out has now been extended to the prohibition under Article A.2(b) of W/279. Compared to the requirements in Article A.1.1(a) of W/10, the only extra condition in Article A.2(b) of W/279 for utilizing the sustainability carve-out is to disclose the subsidy amount specifically designated for DWF. This is a clear dilution from the hard prohibition under Article A.2(a) of W/10. Notably, DWF subsidies now face less stringent disciplines than even tier 1 Members under Article A.1.1. This leniency is likely to result in DWFNs refraining from reducing subsidies, thereby perpetuating unsustainable fishing practices in the EEZ of small island developing states.

10.  Historically, advanced industrial fishing nations have heavily subsidized their DWF industry, allowing it to flourish. These countries would be permitted to continue subsidising their DWF fleets solely for the purpose of ABNJ fishing by demonstrating their fisheries management systems. By contrast, developing countries are still in the nascent stages of developing their industrial fishing capabilities and do not have equally robust fisheries management frameworks. Consequently, the Chair's proposed text would prove more onerous for developing countries than for the existing advanced industrial fishing nations, thereby running counter to the principle of common but differentiated responsibilities and respective capabilities.

11.  In sum, DWF fishing subsidies have been given a clean chit in the maximum manner possible. DWF is not possible without large-scale, industrial-scale fishing capacity. When DWF is the primary contributor to unsustainable fishing, such lenient treatment is tantamount to turning the sustainability objective upside-down.

4  CONCLUSION

12.  The current draft text proposed by the Chair raises significant concerns about its ability to effectively regulate states that have historically subsidized their fisheries sector, leading to massive industrial fishing capacities. The two-tiered demonstration requirement and the dilution of disciplines on DWFNs present significant loopholes that may perpetuate unsustainable fishing operations, particularly by large-scale industrial fishing nations. It is essential to carefully review these aspects of the current draft text to ensure that it effectively aligns with the sustainability goals of the OCOF pillar without unfairly burdening developing countries.

__________