Fishing Subsidies Fishing Subsidies & EEZ Access & EEZ Access ArrangementsArrangements

Marcos A. OrellanaMarcos A. OrellanaDirector, Trade & Sustainable Development Director, Trade & Sustainable Development

ProgramProgram

Center for International Environmental Center for International Environmental LawLaw

FINAL DRAFT 05 MAY 06FINAL DRAFT 05 MAY 06

The EEZ: Origins and The EEZ: Origins and ChallengesChallenges

What was the purpose underlying What was the purpose underlying the creations of EEZs? the creations of EEZs?

What is the EEZ’s legal What is the EEZ’s legal framework?framework?

How is the EEZ’s How is the EEZ’s raison d’ raison d’ êêtretre relevant for the Doha relevant for the Doha Negotiations? Negotiations?

Developing Countries & Natural Developing Countries & Natural ResourcesResources

Customary Law, LOS Convention, Customary Law, LOS Convention, 1995 Fish Stocks Agreement 1995 Fish Stocks Agreement

Development & Food SecurityDevelopment & Food Security

Access Arrangements & Access Arrangements & PaymentsPayments

What is the legal framework for What is the legal framework for EEZ access arrangements & EEZ access arrangements & payments?payments?

Is there a relevant distinction Is there a relevant distinction between Arrangements, between Arrangements, Payments & Benefits?Payments & Benefits?

LOS Convention LOS Convention FAO Code on Responsible FAO Code on Responsible

FishingFishing WTO Law: GATT & ASCMWTO Law: GATT & ASCM

Access Arrangements & Access Arrangements & Payments Payments

What are the problems with What are the problems with access arrangements & access arrangements & payments?payments?

Distortions to trade & Distortions to trade & competitioncompetition

Undermine potential for Undermine potential for coastal State developmentcoastal State development

Exports capacity, Enables IUU Exports capacity, Enables IUU Fishing Undermines Fishing Undermines sustainabilitysustainability

WTO Law & Access WTO Law & Access AgreementsAgreements

Do access payments constitute subsidies Do access payments constitute subsidies under the ASCM?under the ASCM?

Hypothesis 1Hypothesis 1: Access payments : Access payments are notare not subsidies under the ASCMsubsidies under the ASCM

Analysis: Analysis: 1. Government-to-government transfers 1. Government-to-government transfers

not “within the territory”not “within the territory” 2. Not a “direct transfer of funds” from 2. Not a “direct transfer of funds” from

government to industrygovernment to industry 3. Access rights (licenses, permits) not a 3. Access rights (licenses, permits) not a

“provision of goods”“provision of goods”

WTO Law & Access WTO Law & Access Agreements (cont)Agreements (cont)

Do access payments constitute subsidies Do access payments constitute subsidies under the ASCM?under the ASCM?

Hypothesis 2:Hypothesis 2: Access payments Access payments are are subsidies under the ASCM.subsidies under the ASCM.

Analysis:Analysis: 1. payments originates “within the 1. payments originates “within the

territory,” e.g. export creditsterritory,” e.g. export credits 2. payments are a “direct transfer of funds” 2. payments are a “direct transfer of funds”

that confer a benefitthat confer a benefit 3. access to fish constitute “provision of 3. access to fish constitute “provision of

goods” under ASCM, in light of goods” under ASCM, in light of US-US-Softwood LumberSoftwood Lumber case (WT/DS257/AB/R). case (WT/DS257/AB/R).

Options for Options for Improved Improved

Disciplines on Disciplines on Fishing SubsidiesFishing Subsidies

Is there a role for the WTO in addressing Is there a role for the WTO in addressing access payments?access payments?

Maintain the status quo & explore dispute Maintain the status quo & explore dispute settlementsettlement

Improving DefinitionImproving Definition:: Decoupling Decoupling Arrangements, Payments & BenefitsArrangements, Payments & Benefits

Improving Remedies: Use of Presumptions in Improving Remedies: Use of Presumptions in Dispute SettlementDispute Settlement

Lessons from Export Credits & the Lessons from Export Credits & the ArrangementArrangement