WT/MIN(22)/W/20

10 June 2022

(22-4435) Page: 1/9

Ministerial Conference Original: English

Twelfth Session
Geneva, 12-15 June 2022

AGREEMENT ON FISHERIES SUBSIDIES

DRAFT TEXT

Note: This document is without prejudice to any Member's positions or views, whether or not
reflected herein.

_______________

ARTICLE 1: SCOPE

This Agreement applies to subsidies, within the meaning of Article 1.1 of the Agreement on
Subsidies and Countervailing Measures (SCM Agreement) that are specific within the meaning of
Article 2 of that Agreement, to marine wild capture fishing and fishing related activities at sea. 1, 2, 3

ARTICLE 2: DEFINITIONS

For the purpose of this Agreement:

(a) "fish" means all species of living marine resources, whether processed or not;

(b) "fishing" means searching for, attracting, locating, catching, taking or harvesting fish
or any activity which can reasonably be expected to result in the attracting, locating,
catching, taking or harvesting of fish;

(c) "fishing related activities" means any operation in support of, or in preparation for,
fishing, including the landing, packaging, processing, transshipping or transporting of
fish that have not been previously landed at a port, as well as the provisioning of
personnel, fuel, gear and other supplies at sea;

(d) "vessel" means any vessel, ship of another type or boat used for, equipped to be used
for, or intended to be used for, fishing or fishing related activities;

(e) "operator" means the owner of a vessel, or any person, who is in charge of or directs
or controls the vessel.

1
For greater certainty, aquaculture and inland fisheries are excluded from the scope of this Agreement.
2
For greater certainty, government-to-government payments under fisheries access agreements shall
not be deemed to be subsidies within the meaning of this Agreement.
3
For greater certainty, for the purposes of this Agreement, a subsidy shall be attributable to the Member
conferring it, regardless of the flag or registry of any vessel involved or the nationality of the recipient.
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ARTICLE 3: SUBSIDIES CONTRIBUTING TO

ILLEGAL, UNREPORTED AND UNREGULATED FISHING4

3.1 No Member shall grant or maintain any subsidy to a vessel or operator 5 engaged in illegal,
unreported and unregulated (IUU) fishing or fishing related activities in support of IUU fishing.

3.2 For purposes of Article 3.1, a vessel or operator shall be considered to be engaged in IUU fishing
if an affirmative determination thereof is made by any of the following6, 7:

(a) a coastal Member, for activities in areas under its jurisdiction; or

(b) a flag State Member, for activities by vessels flying its flag; or

(c) a relevant Regional Fisheries Management Organization or Arrangement (RFMO/A), in

accordance with the rules and procedures of the RFMO/A and relevant international
law, including through the provision of timely notification and relevant information, in
areas and for species under its competence.

3.3 (a) An affirmative determination8 under Article 3.2 refers to the final finding by a
Member and/or the final listing by an RFMO/A that a vessel or operator has engaged
in IUU fishing.

(b) For purposes of Article 3.2(a), the prohibition under Article 3.1 shall apply where
the determination by the coastal Member is based on relevant factual information and
the coastal Member has provided to the flag State Member and, if known, the
subsidizing Member, the following:

(i) timely notification, through appropriate channels, that a vessel or operator has
been temporarily detained pending further investigation for engagement in, or that the
coastal Member has initiated an investigation for, IUU fishing including reference to any
relevant factual information, applicable laws, regulations, administrative procedures, or
other relevant measures;

(ii) an opportunity to exchange relevant information 9 prior to a determination, so

as to allow such information to be considered in the final determination. The coastal
Member may specify the manner and time period in which such information exchange
should be carried out; and

(iii) notification of the final determination, and of any sanctions applied, including, if
applicable, their duration.

The coastal Member shall notify an affirmative determination to the Committee provided for
in Article 9.1 (referred to in this Agreement as "the Committee").

4
"Illegal, unreported and unregulated (IUU) fishing" refers to activities set out in paragraph 3 of the
International Plan of Action to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing adopted
by the UN Food and Agriculture Organization (FAO) in 2001.
5
For the purpose of Article 3, the term "operator" means the operator within the meaning of Article 2(e)
at the time of the IUU fishing infraction. For greater certainty, the prohibition on granting or maintaining subsidies
to operators engaged in IUU fishing applies to subsidies provided to fishing and fishing related activities at sea.
6
Nothing in this Article shall be interpreted to obligate Members to initiate IUU fishing investigations or
make IUU fishing determinations.
7
Nothing in this Article shall be interpreted as affecting the competence of the listed entities under
relevant international instruments or granting new rights to the listed entities in making IUU fishing
determinations.
8
Nothing in this Article shall be interpreted to delay, or affect the validity or enforceability of, an IUU
fishing determination.
9
For example, this may include an opportunity to dialogue or for written exchange of information if
requested by the flag State or subsidizing Member.
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3.4 The subsidizing Member shall take into account the nature, gravity, and repetition of IUU fishing
committed by a vessel or operator when setting the duration of application of the prohibition in
Article 3.1. The prohibition in Article 3.1 shall apply at least as long as the sanction 10 resulting from
the determination triggering the prohibition remains in force, or at least as long as the vessel or
operator is listed by an RFMO/A, whichever is the longer.

3.5 The subsidizing Member shall notify the measures taken pursuant to Article 3.1 to the
Committee in accordance with Article 8.4.

3.6 Where a port State Member notifies a subsidizing Member that it has clear grounds to believe
that a vessel in one of its ports has engaged in IUU fishing, the subsidizing Member shall give due
regard to the information received and take such actions in respect of its subsidies as it deems
appropriate.

3.7 Each Member shall have laws, regulations and/or administrative procedures in place to ensure
that subsidies referred to in Article 3.1, including such subsidies existing at the entry into force of
this Agreement, are not granted or maintained.

3.8 For a period of 2 years from the date of entry into force of this Agreement, subsidies granted
or maintained by developing country Members, including least-developed country (LDC) Members,
for low income, resource-poor and livelihood fishing or fishing related activities, up to 12 nautical
miles measured from the baselines shall be exempt from actions based on Articles 3.1 and 10 of this
Agreement.

ARTICLE 4: SUBSIDIES REGARDING OVERFISHED STOCKS

4.1 No Member shall grant or maintain subsidies for fishing or fishing related activities regarding
an overfished stock.

4.2 For the purpose of this Article, a fish stock is overfished if it is recognized as overfished by the
coastal Member under whose jurisdiction the fishing is taking place or by a relevant RFMO/A in areas
and for species under its competence, based on best scientific evidence available to it.

4.3 Notwithstanding Article 4.1, a Member may grant or maintain subsidies referred to in Article 4.1
if such subsidies or other measures are implemented to rebuild the stock to a biologically sustainable
level.11

4.4 For a period of 2 years from the date of entry into force of this Agreement, subsidies granted
or maintained by developing country Members, including LDC Members, for low income, resource-
poor and livelihood fishing or fishing related activities, up to 12 nautical miles measured from the
baselines shall be exempt from actions based on Articles 4.1 and 10 of this Agreement.

10
Termination of sanctions is as provided for under the laws or procedures of the authority having made
the determination referred to in Article 3.2.
11
For the purpose of this paragraph, a biologically sustainable level is the level determined by a coastal
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.
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ARTICLE 5: SUBSIDIES CONTRIBUTING TO OVERCAPACITY AND OVERFISHING

5.112 No Member shall grant or maintain subsidies to fishing or fishing related activities that
contribute to overcapacity or overfishing. For the purpose of this paragraph, subsidies that contribute
to overcapacity or overfishing include:

(a) subsidies to construction, acquisition, modernisation, renovation or upgrading of

vessels;

(b) subsidies to the purchase 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;

(f) price support of fish caught;

(g) subsidies to at-sea support;

(h) subsidies covering operating losses of vessels or fishing or fishing related activities.

5.1.1 A subsidy is not inconsistent with Article 5.1 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.11

5.2 (a) No Member shall grant or maintain 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).13

(b) Subparagraph (a) shall not apply to the non-collection from operators or vessels of
government-to-government payments under agreements and other arrangements
with coastal Members for access to the surplus of the total allowable catch of the living
resources in waters under their jurisdiction, provided that the requirements under
Article 5.1.1 are met.

5.3 No Member shall grant or maintain subsidies provided to fishing or fishing related activities
outside of the jurisdiction of a coastal Member or a coastal non-Member and outside the competence
of a relevant RFMO/A.

5.4 A Member shall take special care and exercise due restraint when granting subsidies to vessels
not flying that Member’s flag.

5.5[14] (a) A developing country Member may grant or maintain the subsidies referred to in Article
5.1 to fishing and fishing related activities within its exclusive economic zone and the
area of competence of a relevant RFMO/A [for a maximum of 7 years after the entry
into force of this Agreement][up to the year 2030]. Subsidies granted or maintained
under this paragraph shall be exempt from actions based on Articles 5.1 and 10 of this

12
For greater clarity, Article 5.1 does not apply to subsidies to the extent they regard stocks that are
overfished.
13
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, 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.
[14 This provision shall not apply to Members whose annual share of the global volume of marine capture
production is at or above [X] per cent as per the most recent published FAO data as circulated by the WTO
Secretariat.]
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Agreement for a period of 2 additional years after the end of the period referred to in
the prior sentence. 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
this Agreement.

(b) (i) A developing country Member may grant or maintain the subsidies referred to in
Article 5.1 to fishing and fishing related activities 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.

(ii) A Member remains exempted until its share exceeds the threshold in
Article 5.5(b)(i) for three consecutive years. It shall be re-included in Article 5.5(b)(i)
when its share of the global volume of marine capture production falls back below the
threshold for three consecutive years.

(c) A developing country Member may grant or maintain the subsidies referred to in Article
5.1 for low income, resource-poor and livelihood fishing or fishing related activities,
up to [12][24] nautical miles measured from the baselines, including archipelagic
baselines.

(d) While applying Article 5.5, a Member shall endeavour to ensure that its subsidies do
not contribute to overcapacity or overfishing.

ARTICLE 6: SPECIFIC PROVISIONS FOR LDC MEMBERS

6.1 The prohibition under Article 5.1 shall not apply to LDC Members.

6.2 An LDC Member may grant or maintain the subsidies referred to in Article 5.1 to fishing and
fishing related activities within its EEZ and the area of competence of a relevant RFMO/A for a
maximum of [X] years after the entry into force of a decision of the UN General Assembly to exclude
that Member from the "Least Developed Countries" category.

6.3 A Member shall exercise due restraint in raising matters involving an LDC Member and solutions
explored shall take into consideration the specific situation of the LDC Member involved, if any. In
addition, a Member applying Article 6.1 or Article 6.2 shall endeavour to ensure that its subsidies do
not contribute to overcapacity or overfishing.

ARTICLE 7: TECHNICAL ASSISTANCE AND CAPACITY BUILDING

Targeted technical assistance and capacity building assistance to developing country

Members, including LDC Members, shall be provided for the purpose of implementation of the
disciplines under this Agreement. In support of this assistance, a voluntary WTO funding mechanism
shall be established in cooperation with relevant international organizations such as the Food and
Agriculture Organization of the United Nations (FAO) and International Fund for Agricultural
Development. The contributions of WTO Members to the mechanism shall be exclusively on a
voluntary basis and shall not utilize regular budget resources.
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ARTICLE 8: NOTIFICATION AND TRANSPARENCY

8.1 Without prejudice to Article 25 of the SCM Agreement and in order to strengthen and enhance
notifications of fisheries subsidies, and to enable more effective surveillance of the implementation
of fisheries subsidies commitments, each Member shall

(a) provide the following information as part of its regular notification of fisheries subsidies
under Article 25 of the SCM Agreement15,16:

(i) type or kind of fishing activity for which the subsidy is provided; and

(ii) catch data by species or group of species in the fishery for which the subsidy
is provided17; and

(b) to the extent possible, provide the following information as part of its regular
notification of fisheries subsidies under Article 25 of the SCM Agreement15,16:

(i) status of the fish stocks in the fishery for which the subsidy is provided (e.g.
overfished, maximally sustainably fished, or underfished) and the reference
points used, and whether such stocks are shared18 with any other Member or
are managed by an RFMO/A;

(ii) conservation and management measures in place for the relevant fish stock;

(iii) name and identification number of the fishing vessel or vessels benefitting from
the subsidy; and

(iv) fleet capacity in the fishery for which the subsidy is provided.

8.2 Notwithstanding Article 1, and to the extent possible, each Member shall notify the Committee
in writing on an annual basis of its fuel subsidies granted or maintained by a Member to fishing and
fishing related activities that are not specific within the meaning of Article 2 of the SCM Agreement.

8.3 Each Member shall notify the Committee in writing on an annual basis of:

(a) a list of vessels and operators that it has affirmatively determined as having been
engaged in IUU fishing;

(b) [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]

(c) a list of any agreements in force, or existing arrangements, for obtaining access to
fisheries 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;

15
For the purpose of Article 8.1, Members shall provide this information in addition to all the information
required under Article 25 of the SCM Agreement and as stipulated in any questionnaire utilized by the SCM
Committee, for example G/SCM/6/Rev.1.
16
For LDC Members, and developing country Members with an annual share of the global volume of
marine capture production not exceeding [0.8] per cent as per the most recent published FAO data as circulated
by the WTO Secretariat, the notification of the additional information in this subparagraph may be made every
four years.
17
For multispecies fisheries, a Member instead may provide other relevant and available catch data.
18
The term "shared stocks" refers to stocks that occur within the EEZs of two or more coastal Members,
or both within the EEZ and in an area beyond and adjacent to it.
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(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.

8.4 Each Member shall, within one year of the date of entry into force of this Agreement, inform
the Committee of measures in existence or taken to ensure the implementation and administration
of this Agreement, including the steps taken to implement prohibitions set out in Articles 3, 4 and 5.
Each Member shall also promptly inform the Committee of any changes to such measures thereafter,
and new measures taken to implement the prohibitions set out in Article 3.

8.5 Each Member shall, within one year of the date of entry into force of this Agreement, provide
to the Committee a description of its fisheries regime with references to its laws, regulations and
administrative procedures relevant to this Agreement, and promptly inform the Committee of any
modifications thereafter. 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.

8.6 A Member may request additional information from the notifying Member regarding the
notifications and information provided under this Article. The notifying Member shall respond to that
request as quickly as possible in writing and in a comprehensive manner. If a Member 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.

8.719 (a) A Member may only invoke Article 4.3, Article 5.1.1, Article 5.5, or Article 6 in respect
of subsidies which it has notified to the Committee under Article 25 of the
SCM Agreement and Article 8.1 of this Agreement.

(b) In addition, a Member may only invoke Article 4.3 or Article 5.1.1 if the Member has
provided the information called for in Articles 8.1(b)(i) and 8.1(b)(ii).

8.8 Members shall notify to the Committee in writing, upon entry into force of this Agreement, any
RFMO/A to which they are parties. This notification shall consist of, at least, the text of the legal
instrument instituting the RFMO/A, the area and species under its competence, the information on
the status of the managed fish stocks, a description of its conservation and management measures,
the rules and procedures governing its IUU fishing determinations, and the updated lists of vessels
and/or operators that it has determined as having been engaged in IUU fishing. This notification
may be presented either individually or by a group of Members.20 Any changes to this information
shall be notified promptly to the Committee. The Secretariat to the Committee shall maintain a list
of RFMO/As notified pursuant to this Article.

8.9 Members recognize that notification of a measure does not prejudge (a) its legal status under
GATT 1994, the SCM Agreement, or this Agreement; (b) the effects of the measure under the SCM
Agreement; or (c) the nature of the measure itself.

8.10 Nothing in this Article requires the provision of confidential information.

19
For greater certainty, and in accordance with footnote 16, Article 8.7 does not require notification prior
to the regular notification of fisheries subsidies, which may include any supplement to, revision of, or correction
of such notification.
20
This obligation can be met by providing an up-to-date electronic link to the notifying Member's or other
appropriate official web page that sets out this information.
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ARTICLE 9: INSTITUTIONAL ARRANGEMENTS

9.1 There is hereby established a Committee composed of representatives from each of the
Members. The Committee shall elect its own Chair and shall meet not less than twice a year and
otherwise as envisaged by relevant provisions of this Agreement at the request of any Member. The
Committee shall carry out responsibilities as assigned to it under this Agreement or by the Members
and it shall afford Members the opportunity of consulting on any matter relating to the operation of
this Agreement or the furtherance of its objectives. The WTO Secretariat shall act as the secretariat
to the Committee.

9.2 The Committee shall examine all information provided pursuant to Articles 3 and 8 and this
Article not less than every two years.

9.3 The Committee shall review annually the implementation and operation of this Agreement,
taking into account the objectives thereof. The Committee shall inform annually the Council for Trade
in Goods of developments during the period covered by such reviews.

9.4 Not later than five years after the date of entry into force of this Agreement and every three
years thereafter, the Committee shall review the operation of this Agreement with a view to
identifying all necessary modifications to improve the operation of this Agreement, taking into
account the objectives thereof. Where appropriate, the Committee may submit to the Council for
Trade in Goods proposals to amend the text of this Agreement having regard, inter alia, to the
experience gained in its implementation.

9.5 The Committee shall maintain close contact with the FAO and with other relevant international
organizations in the field of the fisheries management, including relevant RFMO/As.

ARTICLE 10: DISPUTE SETTLEMENT

10.1 The provisions of Articles XXII and XXIII of the GATT 1994 as elaborated and applied by the
Dispute Settlement Understanding (DSU) shall apply to consultations and the settlement of disputes
under this Agreement, except as otherwise specifically provided herein.21

10.2 Without prejudice to paragraph 1, the provisions of Article 4 of the SCM Agreement 22 shall
apply to consultations and the settlement of disputes under Articles 3, 4 and 5 of this Agreement.

ARTICLE 11: FINAL PROVISIONS

11.1 Members shall take special care and exercise due restraint when granting subsidies to fishing
or fishing related activities regarding stocks the status of which is unknown.

11.2 Except as provided in Articles 3 and 4, nothing in this Agreement shall prevent a Member from
granting a subsidy for disaster23 relief, provided that the subsidy is:

(a) limited to the relief of a particular disaster;

(b) limited to the affected geographic area;

(c) time-limited; and

(d) in the case of reconstruction subsidies, limited to restoring the affected fishery, and/or
the affected fleet to its pre-disaster level.

21
Subparagraphs 1(b) and 1(c) of Article XXIII of the GATT 1994 and Article 26 of the DSU shall not apply
to the settlement of disputes under this Agreement.
22
For purposes of this Article, the term "prohibited subsidy" in Article 4 of the SCM Agreement refers to
subsidies subject to prohibition in Article 3, Article 4 or Article 5 of this Agreement.
23
For greater certainty, this provision does not apply to economic or financial crises.
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11.3 (a) This Agreement, including any findings, recommendations, and awards with respect
to this Agreement, shall have no legal implications regarding territorial claims or
delimitation of maritime boundaries.

(b) A panel established pursuant to Article 10 of this Agreement shall make no findings
with respect to any claim that would require it to base its findings on any asserted
territorial claims or delimitation of maritime boundaries.24

11.4 Nothing in this Agreement shall be construed or applied in a manner which will prejudice the
jurisdiction, rights and obligations of Members, arising under international law, including the law of
the sea25.

11.5 Except as otherwise provided, nothing in this Agreement shall imply that a Member is bound
by measures or decisions of, or recognizes, any RFMO/As of which it is not a party or a cooperating
non-party.

11.6 This Agreement does not modify or nullify any rights and obligations as provided by the SCM
Agreement.

__________

24
This limitation shall also apply to an arbitrator established pursuant to Article 25 of the Dispute
Settlement Understanding.
25
Including rules and procedures of RFMO/As.