WT/MIN(22)/W/20/Add.1  
 
10 June 2022 
(22-4436)  Page: 1/23 
Ministerial Conference  
Twelfth Session  
Geneva, 12 -15 June 2022    
 
AGREEMENT ON FISHERIES SUBSIDIES  
DRAFT TEXT  
Addendum  
The attached document from the Chair of the Negotiating Group on Rules is the explanatory note 
accompanying the draft Agreement on Fisheries Subsidies circulated in document 
WT/MIN(22)/W/ 20. 
_______________  
INTRODUCTION  
Recalling the call by Ministers at the 15 July 2021 Virtual Meeting of the TNC at Ministerial Level on 
Fisheries Subsidies, the Negotiating Group on Rules (NGR) was asked to send to Ministers a clean, 
or as cle an as possible, draft text of disciplines to fisheries subsidies in advance of the 12th Ministerial 
Conference (MC12). Recalling also that a draft Agreement on Fisheries Subsidies was sent to 
Ministers on 24 November 2021 when MC12 was scheduled to start o n 30 November, in document 
WT/MIN(21)/W/5. A revised draft Agreement on Fisheries Subsidies has now been submitted for the 
attention of Ministers, in document WT/MIN(2 2)/W/20. The revised draft Agreement is based on the 
collective work of the Negotiating Group – that is, the work done by Members in meetings of the 
Group in different configurations, textual suggestions made by Members to the NGR, and all other 
Member -led work that has been undertaken. A com pilation of Members' textual suggestions made 
on the two previous drafts  – WT/MIN(21)/W/5  and TN/RL/W/276/Rev.2  – has been circulated in 
document RD/TN/RL/ 161. 
This Addendum is a revision of the one that accompanied the draft Agreement sent to Ministers on  
24 November in WT/MIN(21)/W/5, and is intended to assist them and their delegations in 
understanding the background and reasons for the provisions of the draft Agreement, including 
changes made in this version. It represents my best and objective assessme nt of the intention of 
proposals, textual suggestions, and comments made by Members, based on all the discussions at 
the NGR and in different configurations.  
As with the previous drafts of disciplines on fisheries subsidies (in documents RD/TN/RL/126 of 
25 June 2020, RD/TN/RL/126/Rev.1 of 2 November 2020, RD/TN/RL/126/Rev.2 of 
18 December  2020, TN/RL/W/276 of 11 June 2021, TN/RL/W/276/Rev.1 of 30 June 2021, 
TN/RL/W/276/Rev.2 of 8 November 2021, and WT/MIN(21)/W/5), i t is well understood that nothing 
in the  most recent draft Agreement is agreed, and that it remains  a draft until everything is agreed. 
While this text reflects my honest, best attempt to find a balance in a way that I consider most likely 
to build consensus, the final outcome remains in the han ds of Members working together.   
To assist the work at the Ministerial Conference, I have bracketed language in the draft Agreement 
to represent areas where views have not yet sufficiently converged for me to be in a position to 
present a clear suggested outcome, and on which  I believe Ministers’ attention will be particularly 
warranted. One of the principal areas for attention concerns the numbers associated with t he special 
and differential treatment exemptions for developing country Members from the general prohibition WT/MIN(22)/W/20/Add.1  
 
- 2 - 
 
  on subsidies contributing to overcapacity and overfishing. These numbers are: the share of global 
marine capture fishing above which a developing c ountry Member would not be able to avail of the 
exemptions; the share of global volume of marine capture production below which developing 
country Members would be exempt from the discipline; the transition period during which developing 
country Members wo uld be exempt from the discipline, which also is relevant to a provision for 
Members graduating from LDC status; and the geographic scope of the exemptions for subsidies to 
low income, resource -poor and livelihood fishing or fishing related activities.  Another area for 
Ministers’ attention concerns the transparency provision on the use of forced labour.  
Work will not pause until MC12 begins. Indeed, Members are intensively engaged in different 
configurations in trying to narrow differences and eliminate as many brackets as possible in this last 
period before MC12. As such, supplementary reports may be circulated before and during MC12 . 
_______________  
 
 WT/MIN(22)/W/20/Add.1  
 
- 3 - 
 
  ARTICLE  1: SCOPE  
1. Article  1 defines the scope of the fisheries subsidies disciplines as subsidies within the meaning 
of Article  1.1 of the Agreement on Subsidies and Countervailing Measures (the SCM Agreement) that 
are specific within the meaning of Article  2 of that Agreem ent, to marine wild capture fishing and 
fishing related activities at sea. Footnotes 1 and 2 have not been changed compared to the previous 
draft of the Agreement. Footnote  1 clarifies that aquaculture and inland fisheries are excluded from 
the scope of th e disciplines, and footnote  2 clarifies that payments from one government to another 
government under fisheries access agreements are not within the scope, by indicating that those 
payments would not be deemed to be subsidies under the disciplines.  
2. A new footnote 3 has been added, which was developed by delegations that worked together 
to resolve the differences between the two alternative texts that were in Article 5.3 of the previous 
draft, relating to subsidi es to vessels not flying the flag of the subs idizing Member. According to 
Members, the language of the footnote is inspired by similar language found in previous texts in the 
negotiating process. This new footnote clarifies that a subsidy is attributable to the Member granting 
it, regardless of the f lag or registry of the vessel involved or the nationality of the recipient. This 
footnote is one part of a new approach to address the issues previously addressed in two alternatives 
in the former Article 5.3. The other part of the new approach is in a new  Article  5.4, which is 
described below.  
3. Article 1.2 in the previous version of the text, which was in brackets, would have extended 
the scope of the Agreement to fuel subsidies that are not specific. The brackets indicated that no 
agreement had been reache d on including this provision. The text of former Article 1.2 has been 
omitted from this draft because it is my assessment that, for both practical and systemic reasons, 
there is strong convergence among Members not to extend the scope of the disciplines t o cover non -
specific fuel subsidies. On the other hand, it should be acknowledged that some of those Members 
that had proposed or supported disciplining all fuel subsidies, specific or not, on the basis that these 
are particularly harmful subsidies, contin ue to hold the view that non -specific fuel subsidies should 
be covered by this Agreement.  
4. There is a shared understanding , however,  that fuel subsidies are relevant under SDG target 
14.6 and the MC11 mandate from Ministers1. In this regard, it has been n oted that Article  1 already 
covers fuel subsidies that are specific, which is consistent with the current framework of the subsidies 
disciplines in the SCM Agreement. It also is commonly understood that non -specific fuel subsidies 
can contribute to excessi ve and illegal fishing, but the paucity of data and information on such 
subsidies makes it difficult to assess their extent and impact.  
5. In this context, I would recall the very broad spectrum of views that have been expressed on 
the general issue of fuel,  including but not limited to non -specific fuel subsidies, over the course of 
the negotiations. While some Members have consistently advocated including non -specific fuel 
subsidies, others have strongly opposed this, and neither side was moving from those diametrically 
opposing positions. As another facet of the fuel debate, there have been Members arguing that fuel 
detaxation schemes should be excluded entirely from the scope of the Agreement. However, this is 
strongly opposed by others, including those wh o seek to bring all fuel subsidies, whether specific or 
not, into the scope of the Agreement. In the view of these Members, fuel subsidies including in the 
form of detaxation schemes , were they to be found to be subsidies,  are among the most harmful for 
fisheries sustainability, such that there is no justification to carve any such programmes  out of the 
Agreement, given its sustainability focus.  
6. Coming back to the treatment of non -specific fuel subsidies in the text, while the proposed 
Article 1.2 in the sc ope has appeared in the previous draft texts, it was clear that neither including 
this provision nor staying silent on non -specific fuel subsidies was attracting convergence. As an 
attempt to bridge this gulf in positions, some Members began to suggest tha t including transparency 
provisions in respect of non -specific fuel subsidies could be a possible compromise. Reflecting the 
interest in this sort of a solution, Article  8.1bis was introduced in the previous draft. At the time, it 
was recognized that both the content and the placement of such a provision would need further work 
and reflection by Members.  
 
1 WT/MIN(17)/64.  WT/MIN(22)/W/20/Add.1  
 
- 4 - 
 
  7. In our recent work in the Negotiating Group, I was happy to learn that a group of Members 
with different and somewhat opposed views on this issue had work ed together to elaborate a text 
for transparency in respect of non -specific fuel subsidies around which all of them could converge. 
These Members made clear that for them, including this transparency provision in the Agreement 
would be a compromise alterna tive to including non -specific fuel subsidies within scope. The 
language developed by this representative group is reflected in new Article 8.2 in the draft 
Agreement. It has been noted in the discussions of a transparency provision that a major advantage 
of such a provision is that it would develop an information base about such subsidies that would be 
of great benefit in the review of the Agreement's operation and that might point the way toward 
developing future disciplines in this area. Weighing up all of these considerations that have been 
brought to the fuel debate, my assessment is that inclusion of the transparency provisions in Article 
8.2 represents a compromise that everyone should be able to live with.  
ARTICLE  2: DEFINITIONS  
8. There has been no ch ange to Article  2, which contains definitions for five terms that apply 
throughout the disciplines. The definitions of the first four terms, in (a) through (d), for "fish", 
"fishing", "fishing related activities" and "vessel", were taken from the Agreement  on Port State 
Measures (PSMA).  
9. Since the previous revision of the draft Agreement was distributed, some questions were 
raised as to the breadth of the definition of fish. It was recalled that this definition was taken from 
the PSMA and responds to Member s' general desire not to create a new definition in the WTO.  
10. Earlier discussions had also considered the placement of the term "at sea" in the definition of 
the term "fishing related activities" in (c) to clarify that onshore activities are not covered by  the 
disciplines. However, it is clearly understood among Members that the term "at sea" in Article 2(c) 
covers all of the activities referred to in the definition, i.e., that the activities in question are those 
that take place at sea, and that the Agreem ent does not apply to such activities performed on land. 
Given this clear understanding, and to avoid modifying language taken as is from the PSMA, no 
change in the word order has been made.  
11. Concerning the general definition of the term "operator" in Arti cle 2(e), as explained in the 
previous Addendum, this was taken from the facilitator's work. In an earlier draft, it was a footnote 
to one of the substantive disciplines on subsidies contributing to IUU fishing. Since then, given that 
the term "operator" i s also used elsewhere, the general elements of that definition were moved to 
Article  2(e), whereas the specific part addressing IUU fishing aspects was retained in its original 
placement in that pillar. The text in Article 2(e) remained unchanged except fo r the deletion in the 
preceding version of the text of the qualifier "on board" that had appeared after "any person". This 
change reflects the general understanding that the term "operator" should not be too narrow or rigid 
as this could allow the discipli nes to be circumvented through leasing, corporate structures or other 
arrangements, where someone who was not on board the vessel that had engaged in IUU fishing 
was directing and controlling its activities.  
ARTICLE  3: SUBSIDIES CONTRIBUTING TO ILLEGAL, UN REPORTED AND UNREGULATED 
FISHING  
Overview  
12. Article 3 contains the discipline on subsidies contributing to IUU fishing.  It has not been 
amended since the previous draft apart from the introduction of a reference to the Committee to be 
established under the Agreement, and the removal of the brackets  from Article 3.8.  
Footnote  4 
13. Footnote 4 to the title of Article  3 defines the term "illegal, unreported and unregulated" fishing 
through a reference to paragraph  3 of the International Plan of Action to Prevent, Deter and Eliminate 
Illegal, Unreported and Unregulated Fishing (IPOA IUU).  WT/MIN(22)/W/20/Add.1  
 
- 5 - 
 
  Article  3.1 
14. Article  3.1 contains the basic prohibition in respect of subsidies to IUU fishing, by stating that 
subsidies to a vessel or operator engaged in IUU fishing or fishing related activities in support  of IUU 
fishing are prohibited. The phrase "fishing related activities in support of such fishing", which had 
been introduced in a previous draft text (TN/RL/W/276/Rev.2), is meant to ensure that the scope of 
Article  3.1 should be the same as that referred  to in Article  1, as well as that of the other disciplines, 
all of which apply to both fishing and fishing related activities.  
Footnote  5 
15. Footnote  5 defines the term "operator" for the purpose of Article  3 and clarifies the prohibition 
on subsidies to ope rators. As explained above, the general elements of the definition of the term 
"operator" are found in Article  2(e), whereas the aspects specific to Article  3 appear in this Article.  
16. Footnote  5 also clarifies that the prohibition on subsidies to operators  engaged in IUU fishing 
applies to subsidies provided to fishing and fishing related activities at sea. While many Members 
were comfortable with this language, a few Members supported amending this text so that the 
prohibition on subsidies to operators wou ld apply only to subsidies provided to fishing and fishing 
related activities at sea carried out by the vessel engaged in IUU fishing. Other Members took the 
opposite view, arguing that any affirmative IUU fishing determination regarding an operator, even 
involving a single vessel, should trigger the prohibition on all subsidies to the operator as a whole, 
and not only subsidies to the vessel or vessels involved in the specific incident of IUU fishing.  
17. This is an important issue for many Members, as it is g enerally seen as being closely linked to 
the other provisions of Article  3. Some delegations sought to limit the subsidies prohibition on 
operators to the vessels engaged in IUU fishing as they saw this as being particularly linked to the 
conditions under which the subsidies prohibition is triggered by an IUU determination made by a 
foreign authority (provided for in Article 3.3). Thus, the drafting of the footnote on operators should 
not be seen in isolation. This and the related provisions are aimed at st riking a delicate balance 
between an effective subsidy prohibition on the one hand, and an assurance that the subsidy 
prohibition would not be improperly triggered on the other hand.  
18. The text of Article 3.1 represents a middle point between those who wante d the prohibition to 
apply to all vessels of an operator and those who wanted it to apply only to the vessels engaged in 
the particular IUU fishing incident. In particular, the current draft does not specify this one way or 
the other, and instead aims to e nsure that the scope of the subsidy prohibition will be determined 
by the scope of the IUU fishing determination. As such, if an IUU fishing determination implicates a 
single vessel, the subsidies to that vessel are what would be prohibited. If, however, a n IUU fishing 
determination implicates an operator as a whole, instead of or in addition to the vessel, the subsidies 
to that operator also or instead would be prohibited. This is consistent with the general 
understanding that the WTO does not, and should not, itself become involved in or prejudge the 
substantive nature and scope of any IUU fishing determinations. This understanding is critical for 
many Members.  
Article  3.2 
19. Article  3.2 defines what constitutes IUU fishing as referred to in Article 3.1; that  is, it defines 
what constitutes IUU fishing for the purpose of triggering the subsidy prohibition in Article  3.1. In 
particular, a vessel or operator is considered to be engaged in IUU fishing when it has been found 
to be doing so by one of the entities l isted in Article  3.2, namely a coastal Member, a flag State 
Member, or a relevant Regional Fisheries Management Organization or Arrangement (RFMO/A).  
20. Once again, it should be emphasized that the listing of these entities is not meant to affect 
their compe tence to make IUU fishing determinations, nor to create a hierarchy among them. The 
current text contains certain clarifying language to this effect.  
• Footnote  7 to the chapeau of Article  3.2 clearly states that "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 ." The aim is 
simply to clarify explicitly what has always been intended . That is, that the fact of being WT/MIN(22)/W/20/Add.1  
 
- 6 - 
 
  referred to in this provision of this Agreement does not change, and especially does not 
expand, the roles of these entities beyond those already exis ting under other relevant 
international instruments.  
• The chapeau also states that a vessel or operator is considered to be engaged in IUU fishing 
only if there is an "affirmative" determination of such fishing. The qualifier "affirmative" 
clarifies that a qualifying affirmative determination by any listed entity is not nullified or 
negated by a negative determination by any other listed entity. This comports with the 
language in Article  3.3(a), defining an affirmative determination as a final finding that a  
vessel or operator "has engaged in IUU fishing", or a final listing of a vessel or operator by 
an RFMO/A.  
• The chapeau of Article  3.2 also states that an affirmative determination may be made by 
"any" of the entities listed thereunder. The listed entities  are connected by the conjunction 
"or", clarifying that there is no hierarchy among them.  
21. The term "areas" is used in answer to a concern that had been raised by some Members to 
ensure that this clause covers all living marine resources of a coastal Membe r, including sedentary 
species in a coastal Member's continental shelf area.  
22. In subparagraph  (c), the condition "including through the provision of timely notification and 
relevant information" addresses a concern that IUU fishing determinations made by R FMO/As are 
not subject to the procedural requirements set out in Article  3.3(b). However, that language pertains 
specifically to IUU fishing determinations made by coastal Members and it does not squarely fit the 
situation of RFMO/As. In addition, subparag raph(c) already refers to the rules and procedures on 
the RFMO/A and relevant international law. To address more explicitly the procedural concerns over 
IUU fishing determinations made by RFMO/As the provision requires these entities to provide timely 
notifications and relevant information.  
Article  3.3 
23. Article  3.3 sets out the conditions for triggering the subsidies prohibition in Article  3.1. 
Subparagraph  (a) provides that the "affirmative determination" referred to in Article  3.2 is the "final 
finding" o f IUU fishing by a coastal Member or flag state Member in the case of an IUU fishing 
determination by a coastal Member of a flag State Member, and the "final listing" in the case of an 
RFMO/A.  
24. Subparagraph  (b) contains specific conditions applicable to IUU fishing determinations made 
by coastal Members. The approach in this subparagraph is based on the completion of specific 
required procedural steps, set forth in the chapeau of Article 3.3(b) and its subparagraphs (i) through 
(iii). The ai m of these requirements is to provide clarity and certainty on what the coastal Member 
is obliged to do for its IUU fishing determination to trigger the subsidy prohibition as it applies to 
the subsidizing Member.  
25. First, the chapeau of Article 3.3(b) requ ires that the determination be based on relevant 
factual evidence and, second, subparagraphs (i) through (iii) list what the coastal Member must 
provide to the flag state Member, and/or the subsidizing Member if known.  
26. Concerning the factual evidence requ irement in the chapeau, this is similar to a previously 
considered term "positive evidence". Many Members considered that to be a well -established and 
universal concept. As noted above, however, some Members were concerned that a positive evidence 
standard  would invite WTO scrutiny of the quality of the evidentiary basis of domestic IUU fishing 
determinations, and argued for no reference to any supporting evidence or information. The term 
"relevant factual information" represents a compromise between these opposing views, by requiring 
that IUU fishing determinations be based on relevant factual information and, leaving no room for 
the quality of that information to be questioned or judged in the WTO. The first part of the text in 
(b) also contains the requir ement that a coastal Member's IUU fishing determination must be "based 
on relevant factual information". This is intended to ensure that IUU fishing determinations are fact -
based.  WT/MIN(22)/W/20/Add.1  
 
- 7 - 
 
  27. Subparagraph (i) requires timely notification to the flag state Member and/ or the subsidizing 
Member if known of the commencement of the process that could potentially lead to an IUU fishing 
determination – namely either "that a vessel or operator had been temporarily detained pending 
further investigation for engagement in" IUU fishing or "that the coastal Member has initiated an 
investigation for" IUU fishing. Such a notification should be made through appropriate channels and 
include "reference to any relevant factual information, applicable laws, regulations, administrative 
procedures, or other relevant measures".  
28. Subparagraph (ii) requires the coastal Member to provide the flag State Member and/or the 
subsidizing Member "an opportunity to exchange relevant information prior to a determination, so 
as to allow such information to be considered in the final determination". There is no prescriptive or 
rigid form as to how this exchange should take place, as clarified in footnote  9, which states that 
this exchange may include an opportunity to dialogue or for a written exchange if requested. To this 
end, the draft text provides that it is up to the coastal Member to specify how the information 
exchange should be carried out.  
29. Subparagraph (iii) requires the coastal Member to notify the final determination and any 
sanctions applied, i ncluding their duration if applicable, to the flag State Member and/or the 
subsidizing Member. Thus, subparagraphs (i) through (iii) set forth in detail the bilateral obligations 
of the coastal Member vis -à-vis the flag state Member and/or the subsidizing Member from the 
beginning to the end of the proceedings that result in a final determination that triggers the subsidy 
prohibition.  
30. A further, multilateral, notification obligation to the Committee on Fisheries Subsidies 
established by the Agreement, is c ontained in the chaussette to Article 3.3. This provision requires 
the coastal Member to notify its affirmative determinations of IUU fishing to the Committee. This 
notification requirement is aimed at providing transparency as to the IUU fishing determina tions that 
are relevant under the Agreement, and at putting all Members on notice given that the Member 
subsidizing a given vessel or operator determined to have engaged in IUU fishing is not always 
known. The reference to the name of the Committee has bee n added since the previous draft. As 
this is the first time that the Committee is referred to in the draft Agreement  text was added to 
make clear that "the Committee" referred to is the one to be established by Article 9.1.  
31. Reading all of these provision s together, the draft text of Article  3.3 represents a very delicate 
balance among the long -held divergences of views on this provision. It retains meaningful checks 
on IUU fishing determinations made by coastal Members using objective procedural requireme nts 
and a fact -based standard. This, in turn, reinforces the effectiveness of the subsidies discipline by 
avoiding and minimizing subjective scrutiny of IUU fishing determinations made by competent 
authorities.  
Article  3.4 
32. Article  3.4 concerns the minimum duration of the subsidy prohibition on the basis of an 
affirmative IUU fishing determination. This article requires the subsidizing Member, in setting the 
duration of the prohibition resulting from an IUU fishing determination, to take into account the 
nature, gravity and repetition of the IUU fishing that was committed. This Article further provides 
that the prohibition is to apply for at least as long as the sanction on the vessel or operator resulting 
from the IUU fishing determination, or at least as lo ng as the vessel or operator is listed by an 
RFMO/A, whichever is the longer.  
33. While Members broadly agree that proportionality between the IUU fishing at issue and the 
subsidy prohibition is important, there were long -standing divergences on how this shou ld be 
reflected in the disciplines. Some Members considered that proportionality is already taken into 
account by the competent entities in making the IUU fishing determinations, as well as in 
determining the sanctions or in listing a vessel or operator as  having engaged in IUU fishing. In this 
view, an affirmative IUU fishing determination and the sanction or listing of a vessel or operator 
should be considered proportional to the offence, meaning that the minimum duration of the 
prohibition based on the d uration of the sanction necessarily also would be proportional to the gravity 
of the violation.  WT/MIN(22)/W/20/Add.1  
 
- 8 - 
 
  34. Other Members were concerned that proportionality might not always be reflected in the 
sanction on or listing of a vessel or operator. Recalling that a subsidiz ing Member would have to 
remove its subsidies as a result of another Member's or entity's IUU fishing determinations, these 
Members considered that the subsidizing Member should be able or be required to take 
proportionality into account when determining t he duration of the subsidy prohibition.   
35. This issue was perceived to be intrinsically linked to Article  3.3 by many Members, as one of 
the core issues for them is whether and how proportionality should be taken into account by the 
entity making the IUU fi shing determination and deciding on the sanction on or listing of a vessel or 
operator. Overall, in the context of the draft of Article  3.3, Members were generally comfortable with 
the structure of Article  3.4, which sets the minimum duration of the subsid y prohibition as that of 
the sanction or listing by an RFMO/A, while recognizing that proportionality is also to be taken into 
account by the subsidizing Member in setting the duration of the subsidy prohibition over and beyond 
the minimum.  
36. That said, the draft contains certain clarifying language on a number of aspects:  
• the text provides that the subsidizing Member "shall" consider proportionality, instead of the 
permissive "may" used in a previous text. This is to clarify that it is not only the subsidizing 
Member's right, but also its obligation, to take proportionality into account when determining 
the duration of the subsidy prohibition;  
• the text also clarifies that the duration of the sanction on, or the listi ng by an RFMO/A of, a 
vessel or operator as having engaged in IUU fishing is the minimum duration for the subsidy 
prohibition, by stating that the subsidy prohibition shall apply "at least" as long as the 
sanction or the listing; and 
• the text clarifies tha t sanctions are imposed by coastal Members, whereas listing of a vessel 
or operator as having engaged in IUU fishing is done by RFMO/As.  
37. Importantly, the language of Article  3.4 reflects a delicate balance in the IUU fishing disciplines 
as a whole. In rel ation to Article  3.3, it is linked to Article  3.3(b)(iii), which requires direct notification 
by the coastal Member to the flag state Member and/or subsidizing Member, if known, of any 
sanctions it has applied and, if applicable, their duration. The coasta l Member also is required to 
notify any affirmative determinations to the Committee. The subsidizing Member, in turn, is also 
accountable under Article  3.5 to notify to the Committee of the measures it has taken in applying 
the subsidy prohibition under Ar ticle 3.1. These are viewed as essential elements linked to and 
complementing Article  3.4, by ensuring that the coastal Member has put the subsidizing Member, if 
known, on notice of the final determination, and the sanction and its duration on the one hand ; and 
on the other hand, by requiring the subsidizing Member to notify the implementation of the 
obligations on it arising under Article  3.4.  
Article  3.5 
38. As indicated above, Article  3.5 requires the subsidizing Member to notify to the Committee in 
accorda nce with Article  8.4 the measures it has taken pursuant to Article  3.1, that is the measures 
it has taken to implement the subsidy prohibition triggered by an IUU fishing determination. While 
Article  8.4 is a general provision requiring notification of mea sures taken to ensure the 
implementation and administration of the disciplines, more specific language is included in Article  3 
via Article 3.5 to provide for transparency on the implementation of the prohibition in Article  3.1 in 
the particular cases wher e it is applied. Furthermore, as explained above, the drafting effectively 
provides for alignment of the scope of the prohibition to the scope of the IUU fishing determination, 
in particular as to whether the latter covered certain vessels only, or also or  instead the operator.   
Article  3.6 
39. Article  3.6 sets out a role that port State Members could play in the disciplines on subsidies 
to IUU fishing. This provision reflects Members' recognition of the unique position of port State 
Members in combatting IUU fishing, including pursuant to the PSMA. In particular, Article  3.6 
provides that when a port State Member has notified a subsidizing Member that it has clear grounds WT/MIN(22)/W/20/Add.1  
 
- 9 - 
 
  to believe that a vessel in its port has engaged in IUU fishing, the subsidizing Member s hall give due 
regard to this information and take such actions as it deems appropriate.  
Article  3.7 
40. Article  3.7 is an obligation to implement relevant laws, regulations and/or administrative 
procedures to ensure that the prohibited subsidies are not granted or maintained. In the evolution 
of this text, previous draft notification language for the instruments referred to in Article  3.7 was 
removed based on Members' view that this requirement is covered by Article  8.4.  
Article  3.8 
41. Article  3.8 provides for special and differential treatment (SDT) for the IUU fishing pillar, in 
the form of a "peace clause". The peace clause is for two years for developing Members, including 
least developed country (LDC) Members, in respect of subsidies for low income, res ource -poor and 
livelihood fishing or fishing related activities, up to 12 nautical miles from the baseline. The effect of 
the peace clause is that the disciplines do apply but are not subject to the dispute settlement 
procedures  during the specified durati on. This is in line with the view shared by many Members, 
including many developing country Members, that subsidies to IUU fishing should be eliminated. At 
the same time, the unique and vulnerable circumstances of the artisanal fisheries sector have been 
raised as particularly challenging for developing  country  Members in implementing the disciplines. 
The peace clause in Article  3.8 is meant to address both of these concerns, while keeping with the 
mandate to eliminate subsidies to IUU fishing.  
42. The brackets  in the previous draft around the period of two years and the limit of 12 nautical 
miles have been removed to reflect an emerging convergence around this text. That said, some 
Members remain firmly of the opinion that there should be no special and differe ntial treatment for 
subsidies contributing to IUU fishing. Other Members would prefer a peace clause of a longer 
duration.  
43. Some questions about scope have been raised under the heading of subsidies that contribute 
to IUU fishing but may be more general in nature. This would concern livelihood support, which could 
take various forms such as monetary assistance or direct nutritional support, provided to assist 
families during closed fishing seasons. In a scenario where a fisher was found to have been fishing 
illegally the question arises whether this livelihood support would be prohibited on the grounds that 
it contributes to IUU fishing. It is difficult to see how such livelihood or nutritional support could be 
considered a subsidy "to marine wild capture fis hing and fishing related activities at sea", given that 
at the time of receipt the recipient was not allowed to fish. Furthermore, even if for purposes of 
argument this were the case, the duration of any subsidy prohibition arising from an IUU fishing 
determination would be linked to the duration of the sanction for the illegal fishing via Article 3.4. 
Finally, the establishment of its IUU fishing regime, including any sanctions, is for each Member to 
determine.  
ARTICLE  4: SUBSIDIES REGARDING OVERFISHED STO CKS 
44. Article 4, which addresses subsidies to overfished stocks, is the second of the core disciplines 
in the Agreement and addresses those situations where subsidies are provided for fishing or fishing 
related activities regarding a stock recognized as over fished by a coastal Member or a relevant 
RFMO/A. This Article has not been changed compared to the previous draft, apart from the removal 
of brackets from around and inside Article 4.4.  
Article 4.1  
45. Article  4.1 is the prohibition for subsidies for fishing or fishing related activities regarding an 
overfished stock.  
Article  4.2 
46. The situation where a stock is considered overfished is described in Article 4.2, which is when 
it is recognized as such by a  coastal Member with jurisdiction over the area where the fishing is 
taking place, or by a relevant RFMO/A for the area and species under its competence, based on the WT/MIN(22)/W/20/Add.1  
 
- 10 - 
 
  best scientific evidence available to it. Clearly, the best scientific evidence available  depends on 
many factors including the data available, the nature of the fisheries areas (for example multi -
species tropical fisheries where data on individual stocks may be difficult to ascertain), and the 
resources available for data collection and asses sment.  
Article  4.3 
47. As an exception to Article 4.1, Article 4.3 provides that a Member may grant or maintain 
subsidies for fishing or fishing related activities regarding an overfished stock where the subsidies 
are to rebuild the stock to a biologically su stainable level. A Member may also or alternatively provide 
subsidies for fishing or fishing related activities regarding an overfished stock where there are other 
measures implemented to rebuild the stock to a biologically sustainable level.  
48. The term "bi ologically sustainable level" (BSL) is defined in footnote 11. The reference to this 
footnote is repeated in Article 5.1.1 where it has an identical meaning: the level determined by a 
coastal Member having jurisdiction over the area where the fishing or fi shing 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.  
49. The footnote refers to MSY as an example of a possible reference point that could be used to 
determine the BSL of a fish stock. Footnote 11 does not create any hierarchy or imply any preference 
for the choice of an appropriate reference point for establish ing the BSL, as reference points could 
be based on different methodologies or indicators than, and could be independent of, the concept of 
MSY. It is left to each Member to determine appropriate indicators and methodology for calculating 
BSL in a manner be st suited to the particular situation and commensurate with the data available 
for the fishery. For the areas and species under the competence of an RFMO/A, the BSL is that 
determined by the relevant RFMO/A.  
50. One issue that had been raised pertains to subs idies for fishing and fishing related activities 
in multispecies fisheries where only some of the stocks are recognized as overfished. In these cases, 
Article 4 is not intended to create a presumption that subsidies for any fishing or fishing related 
activities on such stocks are prohibited. Instead, the same requirement of Article 4.3 would apply, 
namely that subsidies or measures are implemented to rebuild the overfished stock or stocks to a 
biologically sustainable level.  
Article  4.4 
51. Article 4.4 is iden tical to Article 3.8 and serves the same purpose, that is, for a period of two 
years, subsidies granted or maintained for low income, resource -poor or livelihood fishing up to 12 
nautical miles from the baseline by developing country Members, including LDC  Members, would be 
exempt from actions based on Articles 4.1 and 10 of this Agreement. In other words, this provision 
operates as a "peace clause" in respect of disputes being taken in respect of such subsidies. As is 
the case and for the same reasons that  brackets around and inside Article  3.8 were removed, the 
brackets around and inside Article 4.4 have also been removed.  
ARTICLE 5: SUBSIDIES CONTRIBUTING TO OVERCAPACITY AND OVERFISHING  
52. Article 5 contains the disciplines on subsidies contributing to over capacity and overfishing. 
This Article has been amended compared to the previous draft to incorporate several clarifications 
and changes of approach in different provisions.  
Article 5.1 and Article 5.1.1  
53. The core disciplines in this pillar are based on th e compromise, "hybrid", approach based on 
a list of presumptively prohibited subsidies qualified by sustainability -based elements. Thus, the 
prohibition consists of the provisions of Article 5.1 and the qualifications in Article 5.1.1, read 
together.  
54. Article 5.1 consists of a chapeau containing the main prohibition, followed by an illustrative 
list of subsidies in subparagraphs (a) through (h) that presumptively contribute to overcapacity or WT/MIN(22)/W/20/Add.1  
 
- 11 - 
 
  overfishing. Article  5.1 then is qualified by Article 5.1.1, which  provides that a subsidy is not 
inconsistent with Article 5.1 if the subsidizing Member demonstrates that measures are implemented 
to maintain the fish stocks at a biologically sustainable level. To recall, the biologically sustainable 
level in Article 5 i s defined identically to the same term in Article 4, via a single footnote, footnote  11.  
55. One important amendment has been made to Article 5.1 based on concerns raised by 
numerous Members since the two previous drafts were circulated. These concerns had to do with 
the placement of former Article 5.1(i), referring to subsidies contingent upon or tied to actual or 
anticipated fishing or fishing related activities in areas beyond the subsidizing Member's jurisdiction. 
In earlier versions of the draft disciplines, this had been a separate Article creating a straightforward 
prohibition on this category of subsidies, the explanation being that these were subsidies explicitly 
for fishing outside the subsidizer's jurisdiction and more likely to contri bute to overcapacity and 
overfishing than, for example, the other subsidies listed in Article 5.1. However, it subsequently was 
moved into Article 5.1(i) to respond to the concerns of other Members that such subsidies did not 
necessarily contribute to over capacity and overfishing, as a Member might be able to demonstrate 
that there were measures to maintain the stock or stocks were being fished at biologically 
sustainable levels.  
56. The concerns over placement remained, and a significant preponderance of Memb ers called 
strongly for re -establishing the content of former Article 5.1(i) as a standalone prohibition, as in 
former Article 5.2. This has been done in this draft for the reasons further elaborated in respect of 
new Article 5.2, to which the previous Art icle 5.1(i) was moved.  
57. A new footnote, footnote 12, has been added to the start of Article 5.1. The footnote clarifies 
that Article 5.1 does not apply to subsidies to the extent that they regard stocks that are overfished. 
This footnote was added to addre ss concerns raised by some Members that a subsidy for fishing a 
stock that was recognized as being overfished could be permitted under Article 4.3 but, because it 
is impossible to demonstrate that measures are in place to maintain an overfished stock at a 
biologically sustainable level, the same subsidy could be prohibited under Article 5.1. Although other 
Members did not share this concern over the interaction of Articles 4 and 5.1, they were open to this 
footnote because it ensures that such an interpreta tion would not arise. It should also be noted that, 
as set out in the previous Addendum, a fish stock recognized as overfished is in a particularly 
vulnerable state. Accordingly, the conditions of Article 4.3 are intended to be more stringent than 
those un der Article  5.1.1, given that the object of Article 4.3 is to allow for subsidies or other 
measures to rebuild the stock to a biologically sustainable level, while that of Article 5.1.1 is to 
maintain the stock at such a level. At the same time, it was rec ognized that there could be a subsidy 
programme under which subsidies were provided both to fishing overfished stocks and to fishing 
stocks that are at biologically sustainable levels. Under such a programme, the subsidies to fishing 
overfished stocks woul d not be prohibited provided the requirements of Article 4.3 were met, and 
the subsidies to fishing stocks at biologically sustainable levels would not be prohibited provided the 
requirements of Article 5.1.1 were met. Some Members that had questioned the need for such a 
footnote indicated that they could accept it on the clear understanding that it did not change the 
operation of these provisions.  
58. In our discussions of the provisions of Article 5.1 and 5.1.1, questions had been raised over 
the presumption that the listed subsidies contribute to overcapacity and overfishing. One particular 
concern was that this presumption would mean that no subsidie s of the types referred to in Article 
5.1 could be provided until after the demonstration referred to in Article 5.1.1 had been completed. 
Having carefully considered the various suggestions to address this concern by restructuring these 
provisions, my ass essment is that the aim and effect of these suggestions is essentially the same as 
that of the provisions as they were drafted, albeit using different approaches. In particular, the 
provisions of Article 5.1.1 contain no requirement to make the referenced demonstration before a 
listed type of subsidy could be granted, nor any implicit requirement to stop all current subsidization 
until such a demonstration is made. Instead, the aim and operation of the text is to ensure that 
sustainability measures factor i n as one important consideration in the granting and maintaining of 
subsidies, and that decisions on subsidization likewise should factor into sustainability 
considerations. It is this linked set of subsidies and sustainability measures – drafted and 
imple mented as the Member sees fit - that would be the subject of the demonstration. As for the 
demonstration itself, it would naturally begin with the notifications as required in Article 8 and 
Committee review of those notifications as provided for in Article  9.  WT/MIN(22)/W/20/Add.1  
 
- 12 - 
 
  59. In particular, that review process would allow for other Members to pose questions and identify 
any issues of concern, and this in turn might lead to bilateral discussions. Ultimately, as a last phase, 
a dispute settlement proceeding could be initiate d to address the issue. Thus, while the list in 
Article  5.1 refers to certain forms of subsidies that have been identified in many proposals and 
elsewhere as having the greatest potential to contribute to overcapacity and overfishing, the list 
does not con stitute a blanket prohibition of such subsidies. Rather, the provisions of Article 5.1.1 
make clear that because the issue is subsidies that contribute to overcapacity and overfishing – 
relative concepts that can only be understood in the context of a part icular fishery – the question of 
whether a given subsidy is prohibited can only be determined in the context of the fishery in which 
it is provided. It is exactly that context that is the subject of the demonstration referred to in 
Article  5.1.1.  
60. To elabor ate a bit further, from my reading of the current draft text, I wo uld expect that in 
the majority of cases , simply complying with the notification  requirements  would be sufficient to 
"demonstrate" to the satisfaction of other Members that the sustainabilit y elements under 
Article  5.1.1 have been met . Most of the r emaining cases would be clarified through the Committee 
work and dialogue among Members. A useful example is the experience under the SPS and TBT 
Agreements. In the more than 25 years of operation of those Agreements there have been tens of 
thousands of notifications. In respect of these, only several hundred specific trade concerns have 
been raised, and only a handful of disputes begun. Most of these were resolved before even getting 
to a ruling by  a panel.  
61. Seen in this light, demonstration of sustainability under Article 5.1.1 is neither an impossible 
standard nor a meaningless procedural step.  It is rather a step that  would begin with and take 
account of the available data and other information ab out the subsidy, the fishery  or fisheries in 
question , and specific management measures . And it also would include the various types of 
multilateral review and other scrutiny provided for in the disciplines.  
Article 5. 2 
62. As noted above, this new draft of th e Agreement once again contains a standalone prohibition 
of subsidies contingent on fishing outside a Member's jurisdiction, in Article 5.2. As I mentioned 
above, there was a significant preponderance of Members sharing the view that this provision should 
be moved back to a standalone prohibition to ensure its effectiveness. Some Members preference 
was to retain the provision as Article 5.1(i), but indicated that they could accept the move back to 
Article 5.2 so long as the prohibition was accompanied by fo rmer Article 5.2(b). That provision 
exempted from this prohibition the non -collection from operators or vessels of government -to-
government payments, subject to the sustainability elements in Article 5.1.1. That provision has 
been restored. Thus, new Artic le 5.2 has the same structure as and is very similar to former Article 
5.2 found, for example, in the draft in TN/RL/W/276/Rev.1.  
63. The footnote to Article 5.2(a), now footnote 13, has been amended compared to the previous 
draft by adding clarifying languag e regarding fishing in a nearby Member's exclusive economic zone 
pursuant to traditional or historical practices or arrangements, including relating to migratory stocks, 
an issue of relevance to some Members.  
Article 5. 3 
64. As just noted, Article 5. 3 is intended to complement the main prohibition in Article 5.1 on 
subsidies that contribute to overcapacity and overfishing. It provides for a prohibition of all subsidies 
to fishing or fishing related activities in the high seas – that is, outside of any c oastal Member's or 
coastal non -Member's jurisdiction and outside the competence of any RFMO/A.  
65. Although it has been stated that  the sustainability conditionality under 5.1.1 to grant otherwise 
prohibited subsidies under Article 5.1 de facto  prohibits subs idies in areas where such demonstration 
cannot occur, including the high seas , Article 5.2 reinforces this prohibition by providing clarity that 
subsidies to fishing or fishing related activities in the unregulated high seas are prohibited not only 
in fact , but also in law.  WT/MIN(22)/W/20/Add.1  
 
- 13 - 
 
  Article 5. 4 
66. Along with footnote 3, Article 5. 4 is part of a new approach to address the differences among 
Members concerning the two alternatives to this provision that appeared in the previous draft  
concerning subsidies to vessels not flying the flag of the subsidizing Member . As I stated above, 
footnote 3 clarifies that a subsidy  is attributable  to the Member  conferring it , regardless of the flag 
or registry of any vessel involved or the nationality  of the recipient. In addition, Article 5. 3 requires 
the subsidizing Member to take special care and exercise due restraint when granting subsidies to 
vessels not flying its flag. This text is the result of compromise among the Members holding views 
on the  opposite sides of the spectrum.  
Article  5.5 
67. Article 5. 5 concerns special and differential treatment for subsidies contributing to 
overcapacity and overfishing , which has been an issue of particular concern for many Members  in 
these negotiations . This is not surprising as this is a key  element in the overall discussion on balance 
and ambition in the Agreement on Fisheries Subsidies.  
68. For a long time, Members held diverging views on both the structure and content of SDT 
provisions in th is pillar of the disciplines. For this reason, I, as the Chair of the negotiations, was 
asked to try my hand at  putting together different elements in the form of a new clean text on SDT 
for Article 5 . This first try was circulated in an earlier version of  this text in TN/RL/W/276/Rev.2  on 
8 November 2021.  
69. On the basis of the discussions in the NGR, proposals, and textual suggestions from Members , 
I drafted Article 5.4  of TN/RL/W/276/Rev.2 as my best and honest attempt to reflect  where I 
considered a landin g zone could lie among different views  at that time. The whole of the Article was 
in brackets in that draft, to reflect that the provisions remain ed under discussion. Three weeks later, 
on 24 November 2021, when I circulated the first Draft Agreement o n Fisheries Subsidies in 
WT/MIN(21)/W/5, the structure of Article 5.4, including the language in it and brackets around it 
remained virtually unchanged. One addition was a footnote  at the start of the Article , which provided 
that it would  not apply to Members whose annual share of the global volume of marine capture 
production is at or above 10 per cent as per the most recent published FAO data. This was in 
response to a widespread call during discussions on the previous versions of the text that developing 
country Members with a relatively large share of global fishing should not be in the position to avail 
of the SDT provisions.  
70. Over the past few  weeks , intensive and useful discussions with and among Members have 
given me  the impression that  views on SDT in A rticle 5 may not be as far apart as they had appeared.  
First, many delegations indicated that they c ould work on the basis of the approach that was in 
Article 5.4 of WT/MIN(21)/W/5, subject to some restructuring and rewording to make it more clear 
that the three elements of SDT in that provision are separate ; and second, many Members showed 
some flexibility in respect of the length of the transition period, the de minimis  threshold , and the 
geographical exemption for artisanal fishing.  
71. On the basis of this work , I have made certain changes to the previous formulations on SDT 
in the overcapacity and overfishin g pillar, with the aim of making these provisions more broadly 
acceptable to Members. One important change was to separate and renumber the subparagraphs of 
the Article  to make it more clear that the three elements of SDT are separate  although they work in  
parallel during the transition period. This restructuring has been well -received by delegations, 
allowing us to focus on the specific elements themselves.   
Footnote 14  
72. Footnote 14, which was footnote 12 in the previous draft, has been revised, and the fi gure of 
10 per cent has been replaced with an "X". The entire footnote is in brackets to indicate that some 
Members are concerned that this is not the appropriate way to indicate that any developing country 
Member should not avail from SDT. Others consider , however, that those developing country 
Members with a large share of global marine capture should not be able to avail of SDT for subsidies 
contributing to overcapacity and overfishing.  WT/MIN(22)/W/20/Add.1  
 
- 14 - 
 
  73. The other amendment concerns the reference to the most recent publi shed FAO and adds the 
phrase "as circulated by the WTO Secretariat". The intention of this amendment is to account for 
potential differences in nomenclature between the UN system and the WTO.  
Article 5.5  (a) 
74. Article 5.5(a) provides for  a transition period available to all developing country Members not 
falling under the scope of footnote 14 and that choose to use this provision. During this period a 
developing country Member would be exempt from the prohibition in Article 5.1. That is, it could 
grant or maintain the subsidies in Article 5.1 without having to meet the sustainability requirements 
in Article 5.1.1, in its EEZ and in the area of competence of an RFMO.  
75. Members' views on the duration of this transition period continue to range from no, or at best 
a very short transition period , to the proposal for a transition period of 25 years. However, the se 
represent views at the opposite ends of the spectrum, while it appears that most Members now see 
the likely outcome within a narrower range. I have incorporated two alternative formulations of the 
transition period, based on Members' discussions on this issue. The first alternative is 7 years, which 
represent a mid -point among the gradually narrowing range of numbers that Members have be en 
discussing. The second alternative is based on the suggestion from numerous Members to refer to 
a specific end -date for the transition period, namely year 2030. This is the target date for 
implementation of the Sustainable Development Goals and Target 1 4.6 which, along with  the MC11 
Ministerial Decision on Fisheries Subsidies, is our mandate for negotiating this Agreement.  
76. The numbers associated with the transition period, 7 years or up to the year 2030,  have been 
included in brackets , because this is a n area where views have not converged  enough for me to 
present a single suggested outcome .  
77. Another new element to the transition period is some further period of flexibility through a 
two-year peace clause, which would apply after the transition period en ded. During this two -year 
period, a developing country Member using Article 5.1 would still have the obligation to implement 
that provision but would be exempt from dispute settlement under Articles 5.1 and 10 of this 
Agreement. A proposal with a similar o bjective has also been distributed, which would give 
developing country Members a set number of years after the transition period when they would not 
have to notify information about stock status.  
78. Finally, questions have been raised about the appropriaten ess and practicability of the final 
clause of Article 5.4(b ) in the previous draft, that Members intending to invoke this provision should 
inform the Committee in writing before the date of entry into force of the Agreement. To address 
this concern, the dr afting has been changed to mirror that in Articles 8.4 and 8.5, by referring to 
"within one year of the date of entry into force".  
Article  5.5 (b) (i) 
79. Article 5.5(b) (i) is intended to provide flexibility  for developing country Members with 
relatively small individual shares of marine global capture production . This provision would apply 
separately and in parallel to Article 5. 5(a), that is during and after the transition period. Under Article 
5.5(b)(i),  a Member with no more than the specifi ed de minimis  share of global marine capture 
would be exempt from Article 5.1, including Article 5.1.1, for as long as its share of catch was below 
the de minimis  limit for three consecutive years .  
80. The previous draft of the Agreement had proposed a 0.7 pe r cent share of global marine 
capture as the threshold. The number was in brackets to indicate that v iews varied on the threshold 
percentage , ranging from 0.3 up to 5 per cent. Once again, however, these represented the far ends 
of the spectrum . Some Membe rs that had indicated a willingness to accept 0.7 per cent  stated that 
this was their compromise position , noting that a Member with  1 per cent share of global catch would 
be among the top 20 fishing nations in the world with over 800,000 tonnes of fish ca ught a year. It 
also was noted that the vast majority of Members currently below a 0.7  per cent share of global 
catch well below this figure , giving them considerable policy space to increase catch before reaching 
this threshold . Others pointed out that some developing country Members might  reach 0.7 per cent 
relatively soon, and therefore sought additional policy space.  WT/MIN(22)/W/20/Add.1  
 
- 15 - 
 
  81. As a compromise solution, and based on discussion and negotiations among Members, in this 
new draft, I am sugg esting that the de minimis threshold for the exemption from Article 5.1 be set 
at 0.8 per cent share of global volume of marine capture production  as per the most recent published 
FAO data . This number is in square brackets since this is an area where view s have not fully 
converged . In this provision the phrase "as circulated by the WTO Secretariat" has been added for 
the same reasons as I outlined for footnote 14.  
Article 5.5(b)(ii)  
82. Article 5.5(b) now contains two subparagraphs because footnote 13 of the p revious draft has 
been moved into Article 5.5(b)  as subparagraph (ii). Apart from editorial changes, the text of this 
provision remains the same. That is, it provides that a  developing country Member would remain 
exempt from Article 5.1 until its share of global marine capture production exceeded the de minimis 
threshold for three consecutive years. Conversely, Article 5.5(b)(i) would apply again to a Member 
whose share of global marine capture production fell back below this threshold for three consecutive  
years.  
Article 5.5 (c)  
83. Article 5.5(c) is often referred to as the exemption for subsidies to artisanal fishing. This 
provision also works separately and in parallel to the transition period in Article 5.4(a) . Article 5.5(c) 
would exempt from Article 5.1, including Article 5.1.1, for all developing countr y Members  not falling 
under the scope of footnote 14,  subsidies to low income, resource -poor and livelihood fishing within 
a geographic limit . Again, this is a stand -alone pro vision that operates in parallel with the transition 
period in Article 5.5(a), and would be relevant after the transition period for those Members with a 
greater than de minimis  share of world catch.  
84. The previous draft Agreement set a geographic limit of 1 2 nautical miles (in brackets). Similar 
to the discussions on the length of the transition period and the de minimis  threshold, Members' 
views on what the limit should be are diverse. Some have noted that they see even having such an 
exemption as a comprom ise from their earlier opposition to an artisanal fishing exemption, or their 
view that it should be limited to de minimis Members. These Members generally oppose any 
expansion of the 12 nautical mile limit because it is a permanent exemption. On the other  hand, 
some developing country Members argue that this exemption should apply to the entire EEZ or 200 
nautical miles. From recent discussions among Members, I sense that the preponderance of Members 
are considering numbers in the 12 to 24 nautical mile ra nge. This is the reason that these two figures 
appear in the text, as alternatives, and in brackets.  
85. Those in favour of 12 nautical miles have noted that this is the limit of the territorial sea in 
UNCLOS where the coastal Member has full sovereignty. Some Members in favour of a limit of more 
than 12 nautical miles  argue, however , that artisanal fishers m ay fish somewhat beyond 12 miles  
and that such fishers should not be subject to any condition s or artificial boundaries for any subsidies 
they may receive. Some Members have suggest ed 24 nautical miles as an alternative, noting that 
this is the limit of the contiguous zone as set out in UNCLOS.  
86. One technical clarification has been introduced at the end of this provision, to reflect that the 
baselines from which the geographic scope of the exemptions  is measured includes archipelagic 
baselines, as referred to in Article 47 of UNCLOS, that is from the outermost points of the outermost 
islands and drying reefs of the archipelago. This means in practice that the exemption for artisanal 
fishing would apply to all of the waters inside the archipelagic baselines.  
Article 5. 5 (d) 
87. From our extensive discussions on this issue to date, it has been suggested that Members 
availing themselves of the SDT provisions nevertheless should aim to provide s ubsidies in a 
sustainable manner, with a view to avoiding contributing to overcapacity and overfishing. This has 
been a shared view of both developed and developing country Members. This is reflected in Article 
5.5(d), which was Article 5.4(c) in the previ ous draft text . Some Members consider that the 
mandatory "shall" in this best endeavours clause is too strong and have suggested "should" or "may" 
instead. I have not changed the drafting here, noting the views of many Members that "shall WT/MIN(22)/W/20/Add.1  
 
- 16 - 
 
  endeavour" merely  implies a need to be cognizant of potential impacts of subsidies when granting 
them rather than requiring any specific action.  
88. As stated earlier, while the drafting of Article 5. 5 is my best and honest attempt at presenting 
a possible landing zone, diverg ences remain with regard to specific figures , and I believe Ministers’ 
attention will be particularly warranted  in resolving these issues. It must be noted, additionally, that 
the numbers in brackets are suggested as a compromise between long held positions on this issue.  
ARTICLE  6: SPECIFIC PROVISIONS FOR LEAST -DEVELOPED COUNTRY MEMBERS  
89. Article 6 contains specifi c provisions for Least Developed Country (LDC) Members. Articles 6.1 
and 6.2 provide for special and differential treatment under Article 5. Article 6.1 is a straightforward 
exemption for LDC Members from the prohibition in Article 5.1.  
90. Article 6.2 provide s for a further transition period once an LDC Member has graduated from 
LDC status. The operational language of this provision is identical to that in Article 5. 5(a), and the 
duration of the transition period is reflected as “X” in square brackets . It has been understood in the 
discussions of this provision that the number to be filled in here should correspond to the length of 
the transition period in Article 5.5(a). F or LDCs , this transition period would begin when they 
graduate, rather than at entry into  force of the Agreement.  
91. Article 6.3 calls for Members to exercise due restraint in raising matters involving an LDC 
Member, and to explore solutions taking into consideration the specific situation of the LDC Member 
involved, if any. Furthermore, this pr ovision adds that LDC Members shall endeavour to ensure that 
the subsidies provided do not contribute to overcapacity and overfishing. This is intended to mirror 
in the LDC Member -specific provisions the same "best endeavour" language that appears in Article 
5.5 (d) pertaining to developing country Members.  
92. As part of the overall SDT provisions, brackets around Articles 6.2 and 6.3 have been removed 
to reflect the removal of brackets around Article 5.5 .  
ARTICLE 7: TECHNICAL ASSISTANCE AND CAPACITY BUILDIN G 
93.  Article 7 has not been amended but the brackets have been removed. It  concerns technical 
assistance and capacity building for developing country Members, including LDCs, for the purpose 
of implementing these disciplines.  
94. It also refers to the establish ment of a voluntary WTO funding mechanism and clarifies that 
contributions of WTO Members to such mechanism shall be exclusively on a voluntary basis and shall 
not utilize regular budget resources.  A concept note on the funding mechanism has been circulate d 
to Members.  
ARTICLE  8: NOTIFICATION AND TRANSPARENCY  
95. Article 8 sets forth the provisions on notifications and transparency , which Members view as 
critical for the implementation of the Agreement.   
Article 8.1 chapeau  
96. As a general principle, the notification and transparency requirements for the Agreement on 
Fisheries Subsidies are intended to be in addition to the existing rules of the SCM Agreement. In this 
regard, the chapeau to Article 8.1 provides that the informat ion requirements under Articles 8.1(a) 
and 8.1(b) are without prejudice to Article 25 of the SCM Agreement ; that is they  are in addition to 
and not in lieu of that provision.  
Article 8.1 (a)  
97. Article 8.1(a) requires the provision of information on the kind of fishing activity for which a 
notified subsidy is provided, and relevant catch data, with footnote 1 5 providing that this information 
is in addition to that provided pursuant to Article 25 of the SCM Agreement.  WT/MIN(22)/W/20/Add.1  
 
- 17 - 
 
  98. Footnote 1 6 to Article 8.1(a), which was in brackets  in the previous draft , is part of the overall 
SDT provisions in the disciplines. The aim of the footnote is to address concerns that the 
transparency and notification requirements in Article 8 should not be overly burdensome for 
developing c ountry Members, including LDC Members. In this regard, the footnote provides for a 
four-year periodicity for the notification of the information referred to in Article 8.1(a) for Members 
falling within the de minimis threshold provided for in Article 5. 5(b)(i). As the specific number for 
the de minimis threshold  in Article 5. 5(b)(i) is in brackets, the specific number for the de minimis 
threshold  in footnote 1 6 also is in brackets.  
99. Article 8.1(a)(ii) requires the provision of certain catch data for the fis hery for which the 
subsidy is provided. To provide for the situation of multispecies fisheries, where catch data by species 
may be difficult to report, the provision allows for reporting by species or group of species. In 
addition, footnote 1 7 provides tha t for multispecies fisheries a Member may provide other relevant 
and available catch data.  
Article 8.1  (b) 
100.  Article 8.1(b) requires notification "to the extent possible" of certain information pertaining to 
the fisheries, stocks and vessels in respect of w hich subsidies are provided.  
101.  The first item under Article 8.1(b) requires notification of the status of the fish stocks in the 
fishery for which the subsidy is provided, along with whether such stocks are shared or managed by 
an RFMO/A. This subparagraph also includes, within parentheses, examples of the stock status to 
be notified. The terms in question, " overfished", "maximally sustainably fished", and "underfished  
are the terms used by the FAO, for example in its SOFIA report. In addition, the reference points 
used to establish the status are to be notified.  
Article 8. 2 
102.  Article 8. 2 requires annual notification "to the extent possible" of fuel subsidies to fishing a nd 
fishing related activities that are not specific . As noted above, t he language was developed by a 
group of interested Members with different and somewhat opposed views on this issue as a 
formulation around which all of them could converge.  
103.  Article 8.2 h as some changes compared to  the previous formulation  of the same provision, 
Article 8.1bis in  the previous draft (WT/MIN(21)/W/5) . First, c oncerning the placement, the 
discussion of new proposed Article 8.2 led to the conclusion that this separate provision should not 
be mixed with what is covered by Article 8.1 , which refers to the SCM Agreement , given that non -
specific subsidies are outside the scope of the SCM Agreement . The suggestion was that , logically , 
this provision should immediately follow  Article 8.1.  Second, the old f ootnote 18 to Article 8.1bis in 
the Draft Agreement (WT/MIN(21)/W/5) clarified that this provision is without prejudice to Article  25 
of the SCM Agreement. However, with the inclusion of the new Article 8.9 , which  is more gen eral 
and clarifies  that notifying a measure does not prejudge its legal status  under the SCM Agreement , 
its effects or its nature , in Members’ view the old footnote 18 became redundant and it was deleted.  
104.  In the discussion of this provision, it has been no ted that the information that would be 
collected could be informative in the reviews of the substantive operation of the Agreement under 
Article 9.4. This element of discussion was an important consideration to many Members in finding 
the transparency elem ents in 8.2 to be a compromise approach to the overall treatment of non -
specific fuel subsidies in this Agreement.  
105.  This provision is related to Article 1 and deletion of the former Article 1.2 on non-specific fuel 
subsidies. As a reminder, Member s’ views on how to deal with this sensitive issue cover ed a spectrum 
from the simple deletion of the brackets around Article 1.2 at one end , to the deletion of Article 1.2 
itself and any transparency provision on these subsidies at the other end.  
106.  As mention ed above, the  compromise solution arising from th e long process we had on this 
issue that most Members could live with  was to add language on transparency in respect of non -
specific fuel subsidies, currently reflected in Article 8.2, and to delete Article 1.2. WT/MIN(22)/W/20/Add.1  
 
- 18 - 
 
  107.  Adding this  new provision  has cause d the remaining paragraphs of Article 8 to be renumbered. 
Similarly, new Article 8.9 cause d the further renumbering of former  Article 8.8  to Article  8.10.  
Article 8. 3 
108.  Article  8.3 contains specific notification and transparency requirements, to be notified on an 
annual basis , relating to: (a) lists of vessels and operators that have been affirmatively determined 
as having been engaged in IUU fishing; (b) information indicating the use of forced labour by vessels 
or operators; and (c) information about government -to-government fisheries access agreements or 
arrangements. Subparagraph (b) is in square brackets, reflecting that discussions on this provision 
are continuing.  
109.  Article 8. 3(c) requires transparency in respect of government -to-government access 
agreements. Namely, the notification of (i) the titles of the agreements or arrangements; (ii) a list 
of their parties; and (iii) to the extent possible, the full text of the agreement  or arrangement.  
110.  Article 8.3(c) has evolved considerably since it was first included in TN/RL/W/276/Rev.1 when 
only the titles of and parties to the agreements or arrangements were to be notified. In line with 
suggestions that there should be greater trans parency for access agreements, additional information 
to be included in the notification was listed in TN/RL/W/ 276/Rev.2 . As some Members were 
concerned that these additional transparency requirements were excessive and unnecessarily 
burdensome  and might i nvolve confidential information, the text in Article 8.3(c) reflects  a middle 
ground , with the retention of some but not all items from the version in TN/RL/W/276/Rev.2, and 
item (iii) put in terms of "to the extent possible" due to concerns over confident ial or otherwise non -
disclosable information . 
Articles 8. 4 and 8. 5 
111.  Articles 8. 4 and 8. 5 refer, respectively, to notification of measures in existence or taken to 
ensure the implementation and administration of this Agreement, and a description of a Member's 
fisheries regime with references to its laws, regulations and administrative procedures relevant to 
this Agreement.  
112.  Under Article 8. 4, the information to be notified pertains to a Member's specific measures and 
steps for implementing and administering the obligations under the Agreement. These include steps 
to implement the prohibitions in Articles 3, 4 and 5 generally, as we ll as new measures to implement 
the prohibitions in Article 3. This latter is linked to the notification obligation in Article  3.5. 
113.  The scope of Article 8. 5 is broader and more general. It requires the provision of a description 
of a Member's fishing regim e, including references to the Member's relevant legal instruments. It is 
thus meant as an overview, and an index to where the relevant legal instruments can be found. This 
notification would only need to be updated when any changes were introduced, and co uld be made 
by providing a link to an official website.  
Article 8. 6 
114.  Article  8.6 provides for a mechanism whereby Members can seek additional information from 
another notifying Member. It is similar to the mechanism under Articles  25.8 and 25.9 of the 
SCM Agreement.  
Article 8. 7 
115.  Article  8.7 links using the flexibilities or the sustainability qualifications to prohibitions in the 
different pillars of the disciplines to certain notification requirements, both those in Article 4.3 and 
Article 5.1.1 available t o all Members, and those in the various provisions containing special and 
differential treatment for developing and LDC Members.  
116.  Subparagraph  (a) indicates the information that must be provided to use the flexibilities or 
sustainability qualifications to prohibitions found in Article 4.3, Article 5.1.1., Article 5.4 , and 
Article  6. This is the information notified under Article 25 o f the SCM Agreement and Article 8.1 of 
this Agreement. All of the notification requirements referenced in subparagraph (a) of Article 8. 7 WT/MIN(22)/W/20/Add.1  
 
- 19 - 
 
  already apply or are meant to apply to all Members pursuant to Article 8.1(a), so this text does not 
impose additional  notification requirements in respect of the SDT provisions beyond those that 
generally apply to all Members.  
117.  To invoke Article 4.3 or Article 5.1.1, subparagraph  (b) of Article 8. 7 requires notification of 
the specific information called for  in Article 8.1(b)(i) and Article 8.1(b)(ii). This reflects Members' 
view that these types of information would become relevant and important for assessing whether 
the requirements for using the provisions in question have been met.  
118.  New footnote 19 has bee n added to Article 8.7 to clarif y that there is no requirement to notify 
subsidy programmes before they are implemented , or prior to what is required under the regular 
notification process . This is a broadly shared understanding among Members, which is ref lected in 
this footnote for clarity and does not change the substance of Article 8.7. This footnote also contains 
a cross -reference to footnote 16, pertaining to the periodicity of notifications by developing country 
Members below the de minimis  threshold in Article 5.5(b)(i).  
Article 8. 8 
119.  Article 8 .8 addresses the call by many Members for transparency in respect of the operation, 
decisions and measures of RFMO/As. The information to be provided includes the instrument 
establishing the RFMO/A, its areas and species of competence, stock status, conservation and 
management measures, and information regarding IUU determinations and listings.  
Article 8. 9 
120.  Article 8.9  is a new provision which repeats verbatim the text of Article 25.7 of the SCM 
Agreement . In particular, it provides that notifying a measure under the Agreement does not 
prejudge its legal status, effects or nature.  
Article 8. 10 
121.  Article 8. 10 provides that there is no requirement to notify confidential information. This 
responds to concerns of some Members that some of the information relevant to items listed in this 
Article might be impossible to provide due to its confidentiality.  
ARTICLE 9: INSTITUTIONAL ARRANGEMENTS  
122.  Article 9 contains provisions relating to institutional arrangements. Th ese provisions reflect 
among other things convergence around the idea that the disciplines on fisheries subsidies should 
be a standalone agreement rather than an annex to the SCM Agreement, the other option that has 
been under discussion.  
123.  Article 9.1 esta blishes a Committee  on Fisheries Subsidies , to carry out the responsibilities 
assigned to it under the Agreement. As elaborated in the subsequent paragraphs, these 
responsibilities include monitoring the implementation of the Agreement.  
124.  Article 9.2 provid es that the Committee shall examine the information notified under the 
Agreement not less than every two years. Because the notification requirements are found in 
Article  8 and Articles 3.3 and 3.5, this provision refers to these two Articles generally.  
125.  Article 9.3 provides for an annual review of the operation of the instrument, similar to that 
found in other WTO Agreements. These reviews would be straightforward reports to the Council for 
Trade in Goods with information on the Committee's activities such as meetings, review of 
notifications, and so forth. This is analogous to the annual reviews conducted by the SCM Committee 
pursuant to Article 32.7 of the SCM Agreement, and indeed the drafting of this provision is identical 
to that of SCM Article 32.7.  
126.  Article 9.4 provides for a periodic review of the substantive operation of this Agreement. 
During the discussions on this provision, there was a general understanding that this review is 
distinctly different from the annual review under Article 9.3. Its pur pose is to assess the effectiveness 
of the Agreement against its overall objective and to identify possible modifications to improve its WT/MIN(22)/W/20/Add.1  
 
- 20 - 
 
  operation, which it has the possibility to submit to the Council for Trade in Goods. Members generally 
considered that the first of these reviews should be undertaken after a sufficiently long period of 
operation to allow for the development of experience in applying the disciplines and to evaluate their 
effects on the sustainability of fisheries. The text reflects the wid ely held view that five years after 
entry into force, and every three years thereafter, would be appropriate intervals for these reviews.  
127.  Article 9.5 requires the Committee to maintain close contact with the FAO and other relevant 
international organizati ons in the field of fisheries management, including relevant RFMO/As.  
ARTICLE  10: DISPUTE SETTLEMENT  
128.  Article 10 sets forth the provisions related to dispute settlement, in two paragraphs. 
Paragraph  1 provides that Articles XXII and XXIII of the GATT  1994, as elaborated and applied by 
the Understanding on Rules and Procedures Governing the Settlement of Di sputes  (DSU), apply to 
the entire Agreement. Paragraph 2 provides that the dispute settlement rules for prohibited subsidies 
in Article  4 of the SCM  Agreement apply to Articles  3, 4 and 5 of this Agreement on Fisheries 
Subsidies.  
129.  The intention of this stru cture is to clarify that Article  4 of the SCM  Agreement would be 
applicable to disputes concerning those Articles of the Agreement on Fisheries Subsidies while the 
DSU would apply to the rest of its provisions. First, the general rules for dispute settleme nt in Article 
XXII and XXIII of GATT 1994 and the DSU apply to the Agreement on Fisheries Subsidies as a whole 
(Article 10.1). Second, Article 4 of the SCM Agreement would apply to consultations and the 
settlement of disputes under Article 3, 4 and 5 of Agreement on the Fisheries Subsidies 
(Article  10.2). To ensure that the relationship between these two provisions is clear, paragraph 10.2 
begins with the phrase "without prejudice to paragraph 1".  
130.  Footnote  22 is purely for clarity. This footnote states that  for purposes of this Agreement on 
Fisheries Subsidies, the term "prohibited subsidy" in Article  4 of the SCM  Agreement refers to the 
subsidies subject to the prohibitions in Articles  3, 4 and 5 of the Agreement on Fisheries Subsidies. 
The reason is to avo id any possibility that subsidies covered by Article 3 of the SCM Agreement could 
be considered relevant under or somehow covered by the prohibitions in Articles 3, 4 and 5 of the 
Agreement on fisheries subsidies , responding to a concern that had been rais ed. 
131.  Footnote 2 1 to Article 10.1 is substantive, as it excludes non -violation claims and situation 
claims under Article  XXIII of the GATT  1994 and Article 26 of the DSU. The discussion of this issue 
centered on the sustainability objective underpinning the Agreement on Fisheries Subsidies, which 
sets it apart from the GATT  1994 and other WTO Agreements that address trade and trade -related 
matters. In this view, there were concerns that non -violation claims and situations claims would 
bring uncertainty and un predictability in applying the disciplines. In addition, it was noted that these 
types of claims have rarely been made and even more rarely have succeeded. Thus, footnote 2 1 
states that subparagraphs 1(b) and 1(c) of Article XXIII of the GATT 1994 and Arti cle 26 of the DSU 
shall not apply to the settlement of disputes under the Agreement on fisheries subsidies.  
132.  Another issue that has been raised is that of the standard of review for panels addressing 
certain claims under the Agreement on F isheries Subsidies . In particular, Members agree that the 
WTO is not a fisheries management organization, and that thus WTO dispute settlement should not 
conduct de novo  reviews of fisheries specific matters such as stock assessments or IUU 
determinations. To this end, over  the course of the negotiations some Members have suggested 
adding various separate standard of review provisions to address such matters. Other Members have 
considered that this is not necessary, as the drafting of the disciplines themselves should make c lear 
the applicable standard of review for each provision. For example, the procedural steps in Article 3.3 
are what would be reviewable in a dispute regarding an IUU determination, rather than the 
substantive foundation of that determination. The balance of the different views appeared to be in 
the latter sense, and therefore there is no provision in Article 10 or elsewhere for any specific 
standard(s) of review.  WT/MIN(22)/W/20/Add.1  
 
- 21 - 
 
  ARTICLE  11: FINAL PROVISIONS  
Overview  
133.  During the negotiations, it was clear that some draft provisions that had gained a level of 
support did not belong readily to one of the existing provisions.  Article  11 "Final Provisions" contains 
six paragraphs that do not fit readily into the other ten Article s, or that apply to  some, but not all, 
of them.  
Article  11.1 
134.  Article  11.1 addresses the issue of subsidizing where the status of the stocks being fished is 
unknown. The provision requires Members to take special care and to exercise due restraint when 
granting subsidies to f ishing or fishing related activities regarding such stocks. This can be viewed 
as an application of a precautionary approach to fisheries management.  
135.  As for the requirement of both due restraint and special care, this is to reflect that these are 
compleme ntary rather than alternative concepts, as the former covers something that a Member 
shall do and the latter something that a Member shall refrain from doing.  
Article  11.2 
136.  Article  11.2 provides for an exception applicable to all Members for disaster relie f.  
137.  The drafting reflects the fact that disasters can be caused by many factors, some natural, such 
as hurricanes and tsunamis, and some man -made, such as oil spills and similar events, all with a 
direct impact on the marine environment and the lives and l ivelihoods of those that depend on 
fishing. Footnote 2 3 clarifies that this provision does not apply to economic or financial crises, to 
respond to concerns that an unmodified reference to "disasters" could open a wide loophole in the 
disciplines.  
138.  The chap eau to this provision states that this exception does not apply to subsidies  
contributing  to IUU fishing (Article 3) or to subsidies regarding overfished stocks (Article 4).  
139.  Subparagraphs (a) through (d) set forth the conditions for the subsidies that can  be provided 
pursuant to this provision in respect to a given disaster. These are that the subsidy must be limited 
to the relief of that disaster, in the affected geographic area and for a limited period, and for 
reconstruction subsidies, limited to restor ing the affected fishery and/or fleet to its pre -disaster level. 
Previous references to sustainability criteria have been deleted based on discussions among 
Members, including that these could make the provision redundant with Article 5.1.1.  
Article  11.3 
140.  Article 11.3 sets forth in two paragraphs disclaimer language aiming to ensure the common 
view of Members that this Agreement and its operation shall not affect in any way issues of territorial 
claims or delimitation of maritime boundaries, including in th e context of WTO dispute settlement.  
141.  The first paragraph is  intended to ensure that nothing in the Agreement or arising from the 
Agreement has any implications for territorial claims or claims relating to the delimitation of maritime 
boundaries. The secon d is intended to ensure that a WTO panel established under the Agreement 
shall not  make findings that would imply that one territorial claim prevailed over another such claim . 
142.  Even though Members share this objective for this provision, they have had oppos ing views 
on how it should be addressed in the text, particularly concerning the issues relating to dispute 
settlement. Some Members preferred to have no text on this issue, some had a strong preference 
for the language in Article 11.3(b) of  the Draft Agre ement in WT/MIN(21)/W/5 , and some wanted a 
text but did not support that version. One point made to me on several occasions is that it is 
extremely unlikely that a WTO Member would go to WTO dispute settlement with a subsidies claim 
under this Agreement that would require a panel to decide wh ich Member had jurisdiction over a n 
area of sea  claimed by two or more Members . Based on common practice in other areas of work of 
the WTO , first there would  probably be  informal consultations between Members, then the WT/MIN(22)/W/20/Add.1  
 
- 22 - 
 
  Committee process whe re the subsidy concern w ould be raised , then there would be the notification 
of consultations under the DSU, and then there would be a request for the establishment of a panel 
in the DSB. At each stage, it would be clear to the complaining party that the territoriality issues 
were present in the matter, making it very unlikely that a subsidy dispute would be pursued.  
143.  Some Members nevertheless considered it important to provide explicit guidance to a panel, 
should such an issue arise in a dispute under this Agreement, however remote the chance.  
144.  The differences a s to any text on territoriality could be summarized as follows:  
• First, whether it is only the party complained against in a dispute under this Agreeme nt 
that could make a statement or assertion regarding a territorial claim that would trigger 
the panel to act in a particular way, or whether  such a statement by a third party to the 
dispute under this Agreement also could do so ; 
• Second, what the panel could do if such a situation arose – would it be able to make its 
own assessment of whether the territoriality assertion was relevant to the particular issue 
about WTO compliance, or should it accept the assertion without any assessment; and  
• Third, how the panel would handle this situation in its report – would it explain why it 
found the assertion about territoriality relevant or not relevant to the WTO dispute claim, 
or would it restrict its report on this particular subsidies  claim to a simple sta tement that 
an assertion had been made . 
A further concern that I heard from several delegations is that we must ensure that any provisions 
in the Fisheries Subsidies Agreement referring to territoriality would not have implications under 
other WTO agreemen ts that have no such provisions.  
145.  Article 11.3 (b) in this new draft of the Agreement reflects a compromise that was identified 
through a very constructive and collaborative process of discussion among interested delegations, 
and a desire to find a solutio n that all could accept , even though it is the preferred outcome of no 
delegation.  The language  is different in some ways compared to the earlier formulation  of the same 
provision  in WT/MIN(21)/W/5 . First, it u ses the phrase "shall make no findings", compared to the 
former language "shall not entertain any claim". Second, it  uses the phrase "base its findings" 
compared to the former language "address any issues". The third change of terminology is the new 
term "ass erted" compared with the former term "contested". In addition to these changes of specific 
language, a further change is to make no reference to either a party or a third party to a WTO 
dispute. The delegations participating in the discussion felt that the se changes, including the 
constructive ambiguity regarding parties and third parties, achieved a level of comfort that they 
could live with.  
146.  Footnote  24 clarifies that the same limitation as in Article 11.3(b) would apply to any Article 
25 arbitration that  might take place instead of a panel. This footnote was  suggested to cover  the 
possibility that arbitration under Article 25 of the DSU could be used to resolve a dispute, in lieu of 
a dispute settlement panel by the DSB.  
Article  11.4 
147.  Article  11.4 contains  a disclaimer to clarify that nothing in this Agreement shall prejudice the 
jurisdiction, rights and obligations of Members under international law, including the law of the sea.  
148.  This provision draws on and reflects extensive discussions aiming to ensure that existing rights 
and obligations under other international instruments, and more generally under international law, 
are not affected by this new Agreement. The specific referen ce to the law of the sea in this provision 
is strongly supported given the close intersection of the subject matter of this new Agreement and 
existing international fisheries instruments. While concern has been raised that this reference is a 
synonym for t he UN Convention on the Law of the Sea (UNCLOS) to which not all WTO Members are 
parties, in fact it is a broader term encompassing everything that can be considered the international 
law of the sea, which in turn applies in an individual way to each indiv idual Member depending on 
what it has accepted.  WT/MIN(22)/W/20/Add.1  
 
- 23 - 
 
  149.  Finally, on Article 11.4, footnote 2 5 clarifies that the law of the sea includes the rules and 
procedures of RFMO/As  as applicable . This i s to ensure that the WTO does not become involved, 
through the operat ion of this Agreement and dispute settlement, in internal matters of RFMO/As.  
Article  11.5 
150.  Article 11.5 is intended to address a concern raised over possible implications of the reliance 
in certain provisions of this Agreement on actions of RFMO/As. In pa rticular, this provision states 
that other than as provided in the Agreement, there is no implication that a Member is bound by 
measures or decisions of, or recognizes, any RFMO/A of which it is not a party or cooperating non -
party. This is intended to ref lect the general understanding that the references in the Agreement to 
RFMO/A decisions and measures are exclusively for the purpose of the fisheries subsidies disciplines 
and are not meant to have any implications beyond those disciplines.  
Article  11.6 
151.  Article 11.6 is a further disclaimer to clarify the relationship of this Agreement with the SCM 
Agreement. In particular, the provision states that this Agreement does not modify or nullify any 
rights and obligations of Members under that Agreement.  
_______ ___