341
agreed to launch negotiations with the aim to “clarify and improve WTO disciplines
on fisheries subsidies, taking into account the importance of this sector to developing countries”.
82
This is an area where the respective goals of WTO (eliminate distortions in trade law) and UNCLOS (preserve marine resources) may be deemed to
converge.
83
It is a commonly acknowledged fact that these subsidies may contribute
to IUU fishing, and are among the main causes of overfishing. At the same time,
fisheries subsidies, like all forms of support, are perceived as a source of distortion
in allocation of resources, producing a negative impact on the liberalization of international trade. At present, the WTO treaties does not provide any specific regulation
concerning fisheries subsidies. In the past, during the Uruguay Round, major fishing
nations obtained to exclude fish products from the Agreement on Agriculture, thus
exonerating fish subsidies from the substantial reduction of subsidies provided by
that agreement. As a result, fisheries subsidies fall under the scope of the WTO
general regime on subsidies, namely the SCM Agreement, which regulates the conditions under which WTO Members may provide subsidies or adopt countervailing
measures to counterbalance injury caused by subsidised imports. The SCM
Agreement applies a “traffic light” approach, consisting in placing subsidies into
one of three different coloured boxes: red box (prohibited subsidies), green box
(permitted subsidies),
84
or amber (actionable subsidies). This regime has so far
proved to be completely sterile and ineffective as regards fisheries subsidies. Despite
the large subsidization of the fisheries sector, in fact, there have been only few complaints in this area under the WTO DSU.
85
In this framework, another contentious issue that bears on the relationship
between UNCLOS and WTO relates to the compatibility with the SCM Agreement
rules of origin to the General Council, 15 July 2002). Despite long discussions, the WTO member
States are still divided among those who consider that the origin of fish taken from the EEZ should
be the country of the flag of the vessel and those who suggest that it should be the coastal State. A
third minority proposal suggests the importing country should determine the origin of the good in
accordance with its legal standpoint of the law of the sea. On 15 October 2007, the Committee
circulated a draft Consolidated Text of Non-Preferential Rules of Origin, providing that “[p]roducts of sea-fishing and other products taken from the sea outside a country are considered to be
wholly obtained in the country whose flag the vessel that carries out those operations is entitled to
fly” (15 October 2007). This definition (which is still present in the latest update of the text: see
WTO Doc. G/RO/W/111/Rev.6, 11 November 2010) does not seem to have resolved the issue, as
there is no consensus on whether the meaning of the term “country” should cover also the EEZ of
the coastal State. Thus, clear criteria to attribute origin to catches from the EEZ are still lacking.
See extensively Serdy (2007).
82 These are part of a broader reform project concerning the SCM and Anti-Dumping Agreements,
carried out, under para. 28 of the Doha Ministerial Declaration, by the Negotiating Group on Rules
(NGR). The Doha Declaration also took into cognisance the relevance of this topic in the framework of the negotiations on trade and environment (ibidem, para. 31).
83 See Myers (2005), p. 68 (noting that subsidies to the fishing industry represent “one area in
which WTO principles clearly support environmental protection”).
84 This box expired on 31 December 1999, according to Art. 8(9) SCM Agreement.
85 Some possible reasons for the absence of any litigation on fisheries subsidies are suggested by
Young (2009), pp. 487−488.
The Relationship Between International Trade Law and the Law of the Sea in the WTO…
agreed to launch negotiations with the aim to “clarify and improve WTO disciplines
on fisheries subsidies, taking into account the importance of this sector to developing countries”.
82
This is an area where the respective goals of WTO (eliminate distortions in trade law) and UNCLOS (preserve marine resources) may be deemed to
converge.
83
It is a commonly acknowledged fact that these subsidies may contribute
to IUU fishing, and are among the main causes of overfishing. At the same time,
fisheries subsidies, like all forms of support, are perceived as a source of distortion
in allocation of resources, producing a negative impact on the liberalization of international trade. At present, the WTO treaties does not provide any specific regulation
concerning fisheries subsidies. In the past, during the Uruguay Round, major fishing
nations obtained to exclude fish products from the Agreement on Agriculture, thus
exonerating fish subsidies from the substantial reduction of subsidies provided by
that agreement. As a result, fisheries subsidies fall under the scope of the WTO
general regime on subsidies, namely the SCM Agreement, which regulates the conditions under which WTO Members may provide subsidies or adopt countervailing
measures to counterbalance injury caused by subsidised imports. The SCM
Agreement applies a “traffic light” approach, consisting in placing subsidies into
one of three different coloured boxes: red box (prohibited subsidies), green box
(permitted subsidies),
84
or amber (actionable subsidies). This regime has so far
proved to be completely sterile and ineffective as regards fisheries subsidies. Despite
the large subsidization of the fisheries sector, in fact, there have been only few complaints in this area under the WTO DSU.
85
In this framework, another contentious issue that bears on the relationship
between UNCLOS and WTO relates to the compatibility with the SCM Agreement
rules of origin to the General Council, 15 July 2002). Despite long discussions, the WTO member
States are still divided among those who consider that the origin of fish taken from the EEZ should
be the country of the flag of the vessel and those who suggest that it should be the coastal State. A
third minority proposal suggests the importing country should determine the origin of the good in
accordance with its legal standpoint of the law of the sea. On 15 October 2007, the Committee
circulated a draft Consolidated Text of Non-Preferential Rules of Origin, providing that “[p]roducts of sea-fishing and other products taken from the sea outside a country are considered to be
wholly obtained in the country whose flag the vessel that carries out those operations is entitled to
fly” (15 October 2007). This definition (which is still present in the latest update of the text: see
WTO Doc. G/RO/W/111/Rev.6, 11 November 2010) does not seem to have resolved the issue, as
there is no consensus on whether the meaning of the term “country” should cover also the EEZ of
the coastal State. Thus, clear criteria to attribute origin to catches from the EEZ are still lacking.
See extensively Serdy (2007).
82 These are part of a broader reform project concerning the SCM and Anti-Dumping Agreements,
carried out, under para. 28 of the Doha Ministerial Declaration, by the Negotiating Group on Rules
(NGR). The Doha Declaration also took into cognisance the relevance of this topic in the framework of the negotiations on trade and environment (ibidem, para. 31).
83 See Myers (2005), p. 68 (noting that subsidies to the fishing industry represent “one area in
which WTO principles clearly support environmental protection”).
84 This box expired on 31 December 1999, according to Art. 8(9) SCM Agreement.
85 Some possible reasons for the absence of any litigation on fisheries subsidies are suggested by
Young (2009), pp. 487−488.
The Relationship Between International Trade Law and the Law of the Sea in the WTO…