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SPECIAL AND DIFFERENTIAL TREATMENT TO LEAST DEVELOPING COUNTRIES UNDER THE FISHERIES SUBSIDIES AGREEMENT, 2022
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SPECIAL AND
DIFFERENTIAL TREATMENT TO LEAST DEVELOPING COUNTRIES UNDER THE FISHERIES
SUBSIDIES AGREEMENT, 2022.
AUTHORED BY - SANKET DAS
INTRODUCTION
Sector of Fisheries is one of the
important and significant sectors for Least Developing Countries in order to
fulfill their food security. Subsidies on Fisheries should not be an impediment
in achieving this objective. There lies a burden on these LDCs to ensure that
there is no overburden on rights of the coastal state and other domestic
regimes involved in fishing by this agreement. At the same time LDCs have an
obligation that small scale global producers of fishes and those indulged in
artisanal fishing is not hampered[1]
and it has to be preserved intact with policy making.[2]
Thus, special and differential treatment becomes important part of negotiations
in fisheries subsidies agreement.[3]
Within its mandate, the contribution of WTO with minimum standards has to be
undertaken by the LDCs from this fisheries agreement.
BRIEF
BACKGROUND TO FISHERIES SUBSIDIES AGREEMENT
Need
to regulate Fisheries Subsidies
In the year 1990, due to increased
awareness a need was felt to regulate fisheries subsidies under international
trade, not only as part of greater fairness but also as a matter of protecting
the natural resources from degradation. Till the fisheries subsidies become the
topic of discussion in WTO negotiations, many reports in the year 1992 and 1998
have been released which stated that effectiveness of fisheries management has been
undermined by way of granting of subsidies that are provided to maintain the
fisheries sector income. After WTO was established in the year 1995, impact and
effects of fisheries subsidies on the environment has been debated upon by the
Committee on Trade and Environment in year 1999.
But many member countries to WTO were
at outset and had differing opinions on overfishing being caused by fisheries
subsidies. Ex. Japan believed lack of sustainable development as the main cause
of overexploitation. New Zealand stressed upon the use of resources above
economical rates of exploitation due to subsidies and thus, it lead to
overfishing creating unfair competition for developing countries. EU didn’t
support the distortive effects of subsidies. This vague mandate among the
member countries led to the need to decide and discuss on the scope of rules on
fisheries subsidies.
Australia, Ecuador, Iceland, Peru and
other 4 countries emphasized the need to address the harmful effects of
fisheries subsidies and proposed the new disciplines to regulate the fisheries
subsidies in international trade. Korea and Japan opposed this taking the
stance that main cause of stock depletion is inadequacy in fisheries management
and putting it on the State responsibility to maintain it. China asked for
special and differential treatment for developing countries as the mandate to
consider the importance of fisheries subsidies to these developing countries.
In the year 2001, WTO members clarified the existing disciplines on fisheries subsidies.
Additionally, WTO also negotiated and clarified the SCM Agreement (Agreement of
Subsidies and Countervailing Measures).
Then UN World Summit on Sustainable
Development in year 2002 called for preventing illegal, unreported and
unregulated fishing and over capacity by eliminating subsidies which contribute
to them. However, US dissents and asked to provide for strict disciplines which
promotes over fishing and overcapacity and it can be done through Government
programmes. Countries also differed on special and differential treatment scope
and questioned its link with the Country’s fisheries sector income.
Hong
Kong Declaration – 06th Ministerial Conference
After 4 years of mandate, in the year
2005 in 06th ministerial conference of Hong Kong, the group
negotiating on the disciplines was instructed to accelerate the process of
preparing a detailed draft in the mandate specifying the regulation for
fisheries subsidies. Annex D of the agreement proves that there were provisions
for strengthening the disciplines for subsidies in fisheries sector. It also
includes elimination of subsidies which contributes to overstocking and
overcapacity of fisheries.[4]
Also, it had contained the provisions for special and differential treatment
for LDCs and developing countries.[5]
Countries provided narrowed down list of defined subsidies which has to be
prohibited.
Some other submissions were addressed
to social security limits and conditions of special and differential treatment.
Due to non-unanimous decisions or consensus on these provisions, scope of
subsidies prohibited impeded Doha round of negotiation and slowed it down in
year 2010-15. Momentum in negotiations was gained when UN Sustainable
Development Goals were adopted in 2015 where it aims to “prohibit subsidies
which contribute to overcapacity, over fishing and IUU fishing.” WTO members
commit to conclude the negotiations by 2020.
Further
Meetings and Developments on the Fisheries Subsidies Draft
In the year 2019, countries
intensified the negotiations on the draft and discussed at length on several
issues including special and differential treatment for LDCs and developing
countries. During these negotiations, many contributions have been submitted
where for example India suggested exemption of fishing activities in exclusive
economic zones in developing countries from subsidies ban on overfishing and
overcapacity of fisheries. This was proposed as part of special and
differential treatment. The Colombian Ambassador, Santiago Wills, as a new
chair concluded that countries will finalize the negotiations by 12th
ministerial conference to be held in Geneva in year 2022.[6]
India, in March 2020, proposed withdrawal of special and differential treatment
from countries whose gross capital income is more than $5000 US, indulged in
distant water fishing and agriculture share etc. which indirectly removes China
specifically.
WTO chair issued revised negotiating
draft text for further discussions. This includes prohibition on subsidies
resulting to IUU fishing, overcapacity and overfished stock. It also delivers
note upon the special and differential treatment for LDCs along with technical
assistance, capacity building etc. It has been one of the key areas of
discussion in the fisheries subsidies draft.
The
12th Ministerial Conference (MC12), which ended on June 16, 2022, saw the World
Trade Organization (WTO) maintain fisheries subsidies. However, several more amendments
to the proposed agreement will have an effect on developing countries and
favour the developed nations.
The
agreement compromises on preserving small fishermen because the subsidies that
were eliminated allow blanket flexibility to both developing and rich
countries. The proposed amendment extends the 12-mile limit for fishing to 200
nautical miles, as requested by developing nations. However, the subsidy is
only available for two years to least developed nations before it is
susceptible to modifications.
Article
1
Article
1 deals with the agreement's specific subsidies,[7]
such as those for marine wild trap fishing and allied sea activities. [8]
Non-specific fuel subsidies[9] for
fishing and fishing-related operations at sea are also covered, as stipulated
by Article 2 of the SCM Agreement.[10]
Article
2
Article
2 of the proposed agreement contains definitions for the terms "fish," "fishing,"
and "fishing-related
activities," "vessel," and "operator."[11] All
alive marine resources are referred to as "fish." "Fishing" refers to any
activity that can fairly be expected to occur in the catching, taking, or
harvesting of fish. Any vessel, ship, or boat that is utilised, adapted to be used
for, or intended to be used for fishing or fishing-related activities is
referred to as a "vessel".
The vessel's owner or any person on board who is in charge of, directs, or
controls the vessel is referred to as the "operator."
Article
3
Article
3 of the draught agreement includes a "prohibition
on subsidies to illegal, unreported, and unregulated fishing."[12] The vessel is deemed to be engaged in IUU
fishing if a "coastal Member"[13], a "flag State Member"[14], or
a "relevant Regional Fisheries Management
Organization"[15] or
"Arrangement makes an affirmative
determination in accordance with the Regional Fisheries Management Organization
or Arrangement's rules" and procedures and relevant international
law. “If a subsidising Member has clear
grounds to think that a vessel in one of its ports has engaged in IUU fishing,
the subsidising Member shall give due consideration to the information received
and take such actions in relation to its subsidies as it deems appropriate,”[16]
according to Article 3.5. Article 3.6 requires “each Member to have laws, rules, and/or administrative procedures in
place to prevent IUU fishing subsidies from being given or maintained”.[17]
Members are required to notify their efforts under Article 3.7.[18] On
the other hand, Article 3.1 exempts subsidies provided or retained by
developing country Members, including least-developed nations, for low-income,
resource-poor, or livelihood fishing or fishing-related activities inside 12
nautical miles of the baselines for a period of two years.[19]
Article
4
Article
4 of the new agreement contains a prohibition on subsidies for overfished
stocks. Overfished stocks are discussed in Article 4.[20]
If the coastal Member under whose authority the fishing occurs or a relevant
RFMO/A concludes that a fish stock is overfished based on the best scientific
evidence available, the stock is considered to be overfished.[21] Further, a Member may grant or retain
subsidies if the revenues are used to assist or rebuild the stock to a
biologically sustainable level.[22]
Article
5
Prohibition
on subsidies concerning overcapacity and overfishing is present under Article 5
of the draft agreement.[23] It
includes “subsidies for the construction,
acquisition and modernisation of vessels; subsidies for the purchase of
machines and equipment for vessels; subsidies for the purchase/cost of fuel,
ice, or bait; subsidies for costs of personnel, social charges, or insurance;
income and price support and subsidies covering operating losses”.[24] Moreover,
a Member may grant or retain subsidies if the revenues are used to assist
or rebuild the stock to a biologically sustainable level and is not violative
of Article 5.1. [25]
Outside the territory of a coastal Member and the competence of a competent
RFMO/A, a member may not give or retain subsidies for fishing or
fishing-related activities. [26] A
subsidising Member may not award or sustain subsidies for a vessel that does
not fly the subsidising Member's flag.[27]
Article
5.1 exempts LDC Members from providing or maintaining subsidies for fishing or
fishing-related activities within their territorial waters, [28] but
it really does apply to developing country Members, including LDC Members,
providing or maintaining subsidies for fishing or fishing-related activities
inside their EEZ and RFMO area. The criteria are that “the Member's GNI per capita exceeds US$5, 00012 for three consecutive
years, the Member's share of annual global marine capture fish production
exceeds 2%, the Member engages in distant water fishing, and the contribution
of Agriculture, Forestry, and Fishing to the Member's annual national GDP is
less than 10% for the most recent three years".
Article
5.1 exempts subsidies provided or retained by developing country Members,
including least-developed nations inside 12 nautical miles of the baselines for
a period of seven years. For a maximum of 5 years, a developing country Member
may provide or maintain the subsidies referred to in Article 5.1 for “fishing and fishing-related activities
inside its EEZ and the jurisdiction of a relevant RFMO/A”. An extension can
be requested from the committee by a developing country Member with a share of “annual global volume marine capture fish
production of less than 0.7 percent,”[29] according to the most recent FAO
report, and “annual subsidies to fishing
or fishing-related activities at sea of less than US$ 25 million.”[30]
Article
6 & 7
Specific
Provision for Least Developing Countries Members is present under Article 6 of
the draft agreement.[31] LDC
Members may continue to apply for a number of years after the UN General
Assembly's resolution to remove them till the "Least Developed Countries" category takes effect. When
presenting issues regarding an LDC Member, a Member must use caution, and any
remedies considered must take into account the LDC Member's situation. Further technical
assistance and capacity building is present under Article 7 of the draft
agreement.[32]
Article
8
Members
provide information as part of their notification of fisheries subsidies under
the SCM Agreement,[33]
such as "type or kind of fishing
activity for which the subsidy is provided" and "catch data by species in the fishery for which the subsidy is provided,"
in order to bolster and improve notifications of fisheries subsidies and
facilitate more effective monitoring of the execution of fisheries subsidies
agreements. Members provide information as part of their notification of
fisheries subsidies under the SCM Agreement,[34]
such as the "status of the fish
stocks in the fishery for which the subsidy is provided”[35] and
whether such stocks are shared, in order to bolster and improve notifications
of fisheries subsidies and facilitate more effective monitoring of the
execution of fisheries subsidies agreements. The vessels and operators that the
Member has determined to be involved in IUU fishing, as well as a list of any
fisheries access agreements, shall be given to the Committee annually in
writing.[36]
Members shall promptly and completely submit any additional information
requested by other Members.[37] The
notified Member must respond to the request in writing as soon as practicable
and in a thorough way. Lastly if the member suspects that a notification or information
has been suppressed, it may alert another Member of the situation.
Article
9
Institutional
Arrangement is present under Article 9 of the draft agreement.[38] A
committee is made up of officials from each of the Members. [39] The
Committee will elect its own Chairperson and it will meet at least twice a
year. The Committee is responsible for carrying out the tasks that have been
given to it. The WTO Secretariat will serve as the Committee's secretariat.
Within one year of their admission, each Member must inform the Committee of
any precautions in place or adopted to ensure the Convention's implementation
and administration, including any efforts undertaken to enforce the
restrictions set forth in Articles 3, 4 and 5 of the draft agreement.[40] Any
modifications must be disclosed to the Committee as well. Every year, the
Committee will assess the implementation and operation.[41]
On the other hand with the passage of every two years, the Committee will
review all material given under Articles 3 and 8.[42]
The Committee will keep in constant communication with important international
organisations in the field of fisheries management, particularly the
FAO and relevant RFMO.[43] Further, the Committee will also conduct an
evaluation of the operation in order to make any necessary improvements.[44]
Article
10
Dispute
Settlement is present under Article 10 of the draft agreement.[45]
Articles of the GATT,[46] as
expanded and enforced by the Dispute Settlement Understanding, and Article 4 of
the ASCM [47] will
govern consultations, dispute settlement, and remedies.
Before we analyze the provisions of
fisheries subsidies agreement for special and differential treatment for LDCs,
we would be looking towards what does LDCs really mean, how they acquire this
status, how they are being differentiated from developed nations and what
yardsticks have been used by organizations of international importance like
World Bank, IMF, UN, WTO etc. But under WTO there is self-determinative process
for member countries to decide their status as either developing or developed
countries and it is open for objection by other member countries of WTO.
However, countries generally go for
developing countries status as several benefits are attached including longer
transitional periods being given, technical assistance being provided by
developed nations etc. Such special and differential treatments to LDCs become
important when developed economies which are already in advantageous position
of dominating the international trade market exploit such poorer nations.
Developed economies are at better bargaining power with good sustainability and
stability of economy.
NEED
FOR SPECIAL AND DIFFERENTIAL TREATMENT
Rationale
for Special and Differential Treatment
Such special and differential
treatment have been given and permitted to LDCs to make international market
accessible and available to them without hampering or infringing upon their
interests in international trade. At the same time it safeguards these LDCs
from harsh policies which directly impact their economies and such treaties
which favour the dominating developed nations and their governing organizations.
Such nations also have ability to control and influence the policy decision
making at international forums.[48]
Any kind of incentives and benefits provided to these LDCs will help them to
boost their economies and the Aid for Trade concept of WTO works on the similar
lines where the developed nations help developing and LDCs to get their
economies strengthened.
However, there have been several
arguments for providing special and differential treatment to the LDCs. The
major argument which was followed was it is not desirable for member countries
which are developed to follow and adhere to such policies or treaties which are
too sensible for other countries. On the other hand, it was argued that part of
developmental policies is desirable but cost of implementing them is
comparatively higher. It is such because cost of finances, human resources and
other requisites is very high. But the cost of non-implementation in world
trade system is trivial as LDCs don’t have that stake there.
The idea of special and differential
treatment is that most of the policies and treaties focus on the developed
member countries which would cause ill-impact on the poorer or least developing
countries. Due to different economical bases and infrastructure and
availability of other resources, all policies cannot be expected to have same
effect on all the member countries. It differs for developed nations,
developing nations and least developed nations. But this treatment has been
criticized also as it purports the unfair treatment to other nations which are
not “developing”.[49]
Problems
and Challenges ahead with Special and Differential Treatment to LDCs
It is to be considered that, since
the process of claiming the status in WTO is by self-determinative process, the
countries choosing to be developing, though developed, to get privileges get
discriminatory advantage of these privileges which would not have been granted.
Laws might have an element of anti-development or exploitation and they can be
discarded at very moment and those which can be negotiated upon and are not
binding need not be discarded. Weak economic power and capacities of developing
countries is the major reason for providing special and differential treatment
to the least developing countries.[50]
These benefits and privileges has been provided to only those countries which
have low levels of income and to whom these benefits by way of special
treatment can help to get integrated into international trade system.
Special and differential treatment to
developing countries was given to improve their economic growth and efforts
have been made in this regard to streamline them and make them aligned with the
national economic developmental strategies of developing countries and help
them to meet their developmental needs.
But the focus has now been changed to
helping LDCs to implement their trade commitments rather than supporting their
economic needs. Experts contest for the degree of differentiation between the
LDCs and criticized the “One Size Fits All” concept undertaken for special and
differential treatment. Such special and differential treatment has been given
to developing countries in very vague and ambiguous manner and there are no
specific objectives and measures which are determinative factor or any
yardstick which helps to identify the LDCs status of member countries in WTO.
MANDATE
FOR SPECIAL AND DIFFERENTIAL TREATMENT UNDER WORLD TRADE ORGANIZATION
Establishment
of Review Mechanism
WTO agreements do contain specific
provisions developing countries giving them special rights and allow developed
nations to favor these least developing countries. These special and
differential treatment provisions are present in various ways like granting
longer time periods for implementation of obligations under these agreements,
support to these countries by way of capacity building, training assistances,
safeguarding their trade interests over the developed economies and some
pivotal measures to increase the opportunities for LDCs in international
trading market. All special and differential treatment provisions were made
integral part of WTO agreements in 4th WTO Ministerial Conference,
Doha Declaration and review of such provisions was made for effective
operations.
The WTO committee on Trade and
Development was established in 2013 in Bali Conference and was asked to
identify those provisions of special and differential treatment which has to be
made mandatory and also analyse their legal implications when such non-binding
provisions were given mandatory application. Also, it is the function of the
committee to make recommendation which either focus on improving the implementation
part of the reviewed provisions or re-negotiate on the provisions itself to
improve them.
Paragraph 44 of Doha Declaration 2001
reaffirmed the provisions of special and differential treatment and made it an
integral part of WTO agreements. Also, the concerns of LDCs have been taken
into account to be addressed and emphasis has been laid down on the operation
part of the provisions relating to special and differential treatment.
Fisheries
Subsidies and Special and Differential Treatment
Negotiations on fisheries subsidies
agreement has been one of the significant discussions under WTO and major key
areas of disagreements have been there among the member countries. One of them
is the provisions of special and differential treatment to LDCs and nations
have debated long to the extent of flexibilities given under this
treatment. WTO members do support the
idea and rationale to provide flexibilities to developing economies for
implementation of obligations and commitments under WTO agreements but at the
same time they oppose to the extent these flexibilities have been given.[51]
They believe such flexibilities under
special and differential treatment has to be limited to certain extent and
focus must be more on the specific needs of the LDCs. It should not be a
permanent exceptions to LDCs rather an optional privilege given on case to case
basis. But contradictorily China, developing nation, supported the broader and
wider provisions for special and differential treatment as such relaxations are
necessary for countries with low income and resources and are having poorer
fishing industries.
So far the discussion was concerned
about the fisheries subsidies agreement and the provisions for special and
differential treatment for LDCs. This treatment to LDCs has been one of the
major areas which have been contested by the member countries of WTO. But there
have been very different approaches as to how this provision for special and
differential treatment has to be covered, implemented and what all are the
exceptions created therein. LDC’s interests in these fisheries subsidies have
been considered to be by different ways and for different reasons. Some of them
are creation of job opportunities, fisheries livelihood, economic development,
poverty alleviation, revenue generation through fisheries licenses, increasing
their catch in global share, exploit viable stock in international waters which
are for commercial purposes etc.[52]
The main bone of contention here is
as to why each and every LDC should be given same special and differential
treatment when they have unequal or very little share of trade in fish products
or global trade. There should be stricter rules or disciplines for those LDCs
which do have significant share in the total fish capture in the global market.
Those developing countries which are not covered in the given threshold or are
having insignificant share in the fisheries trade can be allowed to give
subsidies to vessel operating costs and all types fishing activities.
Another significant issue was
regarding the subsidies given to fishing activities which are in nature of
artisanal, small scale or subsistence. There should be flexible rules with
regards to these fishing activities as they cause less damage to the
environment as compared to large scale commercial fishing activities. These
activities have the tendency to affect income, livelihood and food security.[53]
Last issue is with regards to the scope of prohibitions on subsidy and the
exemptions, the transparency, assistance in capacity building and trainings
requirements for LDCs.[54]
FISHERIES
SUBSIDIES AND ROLE OF LEAST DEVELOPING COUNTRIES
When we talk about countries
contribution to the global marine capture, it amounts to more than 70% by LDCs
and developing nations and hence this become the major reason for demanding
special and differential treatment to LDCs. Also, since developed nations
provide heavy subsidies to fisheries production in their nations, LDCs do face
some disadvantage as they do not have sufficient financial resources or other
forms of institutional support to validly apply heavy subsidies to its
producers. This difference leads to unfair competition in the market and thus,
demand for adequate policy for countries to choose their own subsidy regime as
per their level of commitments is justified.
Interest
of LDCs in Fisheries Subsidies Negotiations
Most of the LDCs and small island
countries are dependent on fisheries sector for their livelihood, food security
and other reasons of protein intake. [55]These
LDCs have large exclusive economic zones and hence have better interest in
fisheries subsidies as well. They are a vital source of earnings as well for
LDCs as their contribution through exports is large and effective too as a
source of national income. Major issues for LDCs was the need to prohibit such
subsidies which lead to illegal, unregulated and unreported fishing activities,
over capacity, and facilitates such activities. There is need for technical
assistance to LDCs to ensure that there are no eventualities of IUU vessels
entering into the territorial limits of the nation and such monitoring mechanism
has to be there in place with LDCs.
Apart from this, LDCs also need to
have the monitoring mechanism for fish stocks in order to overcome the lack of
capacity and hence improving their sustainability. Approach of LDCs to these
subsidies is both offensive and defensive. In defence, the LDCs stated that any
discipline under the subsidies should not hinder their fisheries sector
especially at the smallscale commercial level or subsistence level.[56]
Such policies need to be adopted which permits LDCs a good developmental growth
of the fisheries sector. Such hindrance should also not be extended to
transforming ability of the LDCs i.e from one form to other.
Also, they emphasized on maintaining
their trade and export preferences and protect them from tariff escalation.[57]
It thereby can be done through policy for processing, marketing and regulating
fisheries subsidies at international market. Lastly, though they are small in
numbers, they have to be given flexibilities in order to provide them sustainable
levels of growth by subsidies and at the same time curtail the heavy subsidies
by developed nations which lead to overcapacity of fisheries globally.
But on the other side, LDCs want
disciplines of WTO to address the issues of distant fishing activities by EU,
Japan, Russia, Korea which have large capacity to fish including the exclusive
economic zones of LDCs.[58]
However, there were many instances of IUUs in LDCs zones as there was lack of
monitoring mechanism with the LDCs to regulate their zones. The main root cause
of distant water fishing is the subsidies which is not the viable solution with
LDCs given high costs of vessels and capacity equipments.[59]
Some countries do counter the said argument by providing access fees to LDCs in
whose territories they have entered and exploited the fishing activities but
this is not sustainable seeing the current trends of depletion of fisheries
resources by overexploitation. LDCs having huge access to oceans do often lack
capacity to completely exploit their fisheries resources from both high seas
and their exclusive economic zones.[60]
Hence, the need to improve LDCs capacity in order to ensure sustainability and
help LDCs to harness fisheries resources fully is significant.
Another issue is with the capacity of
LDCs to analyse whether the over fished species are endangered species or not
and therefore there is need for possible remedies and policy in this regard.
They do lack in capacity to evaluate whether the vessels indulged in IUUs is
licensed or not and such vessels sometimes are involved in under declaring the
catches to suspected authorities or Trans boarding of over stocked fishes.
Analysis
of the Article 6 of Fisheries Subsidies Agreement
Article 6 to 11 of the Fisheries
Subsidies Agreement do cover specific provisions for LDCs and includes
technical assistance, capacity building, transparency, other institutional
arrangements and mechanisms for developing countries. We would be analyzing
Article 6 only for the purpose of our discussion.
Article 6 talks about special and
differential treatment to LDCs where Para 1 of Article 6 directly exempt LDCs
from the prohibition imposed under Article 5. Para 2 of Article 6 specifically
talks about transition period further when LDC graduates from the acquired
status. It is similar to Article 5.4(a) and the time period has not been
decided yet as it is up for discussions and negotiations by member countries of
WTO. The only difference from Article 5.4(a) is that such transition period
will not start from date of entry into the force of the aforesaid judgment but
only when such LDCs graduate.
Article 6 Para 3 do put an obligation
on member countries to exercise due care while raising or reporting any matter
which includes LDCs and also while taking and exploring the solutions to the
problem at hand, they should take into consideration the specific situation of
LDCs. At the same time, this paragraph puts an obligation on LDC members to
ensure that such exemption from Article 5.1 and subsidies do not add to
overfishing or over capacity. Article 5.1.1 qualifies Article 5.1 which does
talk about permissible subsidies by member countries if such measure has been
taken to maintain stocks and for sustainable levels of biology.
Article 3.8 of the fisheries draft
also exempts LDCs and other developing countries from prohibition under Article
3.1 and it states “prohibition under Article 3.1 shall not apply to subsidies
granted or maintained by developing country members, including least developed
country (LDC) Members, for low income, resource-poor or livelihood fishing or
fishing related activities within 12 nautical miles measured from the baselines for a period of
two years from the date of entry into force of the proposed instrument”. This was
also contested by many member countries that such special and differential
treatment should not be given to LDCs and such exemptions would be
disadvantageous for developed nations.[61]
However, discussions were also on the
lines that how LDCs members can be identified and suggestions were there as to
upholding the sustainability objectives of special and differential treatment
by listing out such LDCs or opt out clauses in the agreement. Some suggested to
include individual commitments as inserted in Trade Facilitation Agreement
where assistance can be given periodically and some call for legal guarantee
where major and dominating nations cannot take advantage of these exemptions.
CONCLUSION AND SUGGESTIONS
Since 2015, Fisheries Subsidies
Agreement is the first multilateral trade deal which would be successfully
completed under WTO and is the topmost priority of LDCs. The discussions for
next ministerial conference should focus on the areas which were mutually
agreed upon by the parties and then the issues of subsidies leading to IUUs and
overcapacity can be discussed thoroughly. However, the provisions on special
and differential treatment to LDCs under Article 6 and Article 3, exempting the
countries from obligations is problematic as there are many big subsidies
providers who disagree on such blanket exemptions. Countries like China and
India are also not on board with this draft and had asked for a balance policy
space for all the issues and negotiating on such lines might end up de-linking
the fisheries with other deliberations.
This draft would impact countries
like China which have distant fishing vessels in large numbers and this
plurilateral agreement would help countries reach the negotiated policies,
especially those who have schemes operating to support such water fishing in
distant form. LDCs while deliberating on the draft text should clearly intend
their concerns regarding the developmental goals of the nations and issues of
food security, livelihood, poverty eradication and most importantly the
employment generation.
In the 11th Ministerial
conference, several recommendations were made and some of them were inclined
towards LDCs making them lead the discussions on enhancing the subsidies for
capacity building as trade is distorted majorly by these subsidies and it
threatens the small economies and food security concerns. Also, funds could be
created for LDCs to support them in technical assistance. Specific provisions
for this have been there in the fisheries subsidies agreement. There has to be
amendment and revision of SCM Agreement to exclude and prevent subsidies
resulting into overcapacity.
Lastly, member countries can
negotiate and shift to beneficial subsidies from harmful subsidies which would
help in contribution to sustainability commitments, including but not limited
to, creating marine protected areas, marine conservation and the overall
resources. Hence, the deliberations in the upcoming 12th Ministerial
conference are of utmost importance as to provisions for special and
differential treatment to LDCs and balancing out their interest with those of
developed nations.
[1] Anna Schuhbaur, “The Global Fisheries Subsidies Divide Between Small- and Large-Scale
Fisheries”, The Frontiers,
as accessed on 3rd August,
2023.
[2] “Supporting Least Developed Countries in the
Commonwealth ahead of WTO Ministerial Conference”,
,
dated 26th November 2021, as accessed on 4th August, 2023 .
[3] Elizabeth Fitt, “Fishing fail: WTO negotiators flunk deadline to end harmful fisheries
subsidies by 2022”, The Mongabay,
[4] S Taylor, “Measurement and implications of marine food security in the Ocean: an
impending crisis?”, The Springer Link,
[5] “World Trade Organisation Fisheries Subsidies Negotiations”,
, Congressional Research Service dated 16th September
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Article Information
SPECIAL AND DIFFERENTIAL TREATMENT TO LEAST DEVELOPING COUNTRIES UNDER THE FISHERIES SUBSIDIES AGREEMENT, 2022
Authors: SANKET DAS
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/08/25
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
- Access Open Access
- License CC 4.0
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