WT/MIN(21)/W/5/Add.1  
24 November 2021  
(21-8881) Page: 1/18 
Ministerial Conference  
Twelfth Session  
Geneva, 30 November -3 December 2021  Original: English  
 
 
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(21)/W/5.  
_______________  
 
 
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 clean as possible, draft text of disciplines to fisheries subsidies in advance of the 12th Ministerial 
Conference (MC12). As Chair of the NGR, I am submitting a draft Agreement on Fisheries Subsidies 
for the attention of Ministers, in document WT/MIN(21)/W /5. This draft Agreement is based on the 
collective work of the Negotiating Group – that is, the work done during meetings of the Group in 
different configurations, textual suggestions made to the NGR, and all other Member -led work that 
has been undertaken . Particularly intensive work has been undertaken on the basis of the previous 
version of the draft text, contained in document TN/RL/W/276/Rev.2. A compilation of Members' 
textual suggestions made on this draft has been circulated in document RD/TN/RL/153 . 
It is well understood that nothing in the draft Agreement is agreed, and that it and any revisions will 
remain 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, all provisions remain open to 
discussion if Ministers wish to do so.  
Nevertheless, the bracketed language in the draft Agreement represents areas where views continue 
to diverge, on which work is continuing, and on which I believe Ministe rs’ attention will be warranted. 
These include: whether and, if so how, non -specific fuel subsidies should be treated in the 
Agreement, including fuel tax relief or detaxation; the provisions on special and differential 
treatment for developing country Mem bers and LDC Members; and disclaimer language related to 
territorial claims and delimitation of maritime boundaries. In addition, there are some other issues 
which are particularly sensitive for specific Members that also are presented in brackets.  
Work w ill 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 circulate d in the coming days.  
  WT/MIN(21)/W/5/Add.1  
 
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  ARTICLE  1: SCOPE  
1. Article  1 sets out the scope of the fisheries subsidies disciplines. There are two paragraphs in 
this Article. In paragraph  1, the scope is defined 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 Agreement, to marine wild capture fishing and fishing related 
activities at sea. Footnote  1 to paragraph  1 clarifies that aquac ulture and inland fisheries are 
excluded from the scope of the disciplines, while 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 wou ld not be deemed to be subsidies under the disciplines.  
2. Paragraph  2 states that the scope also extends to fuel subsidies that are not specific. This text 
remains in square brackets to indicate a pending decision as to whether to retain this language (i.e.,  
by removing the square brackets) or not (i.e., by removing this text). This is a complex and sensitive 
issue to many Members, and there has been a long -standing divergence of views. Some Members 
support disciplining all fuel subsidies, specific or not, on  the basis that these are the most harmful 
subsidies, but some other Members oppose it, raising systemic concerns given that specificity is a 
core element of the subsidies disciplines in the SCM  Agreement.  
3. That said, there is a shared understanding that f uel subsidies are indeed relevant under SDG 
target 14.6 and the MC11 mandate from Ministers1. However, for those arguing for the deletion of 
Article  1.2, the current scope text in Article  1.1 already covers fuel subsidies that are specific, which 
is consi stent with the current framework of the subsidies disciplines in the SCM Agreement and 
adequate for the purposes of this Agreement. Some Members have indicated that if non -specific fuel 
subsidies were to be addressed at all in this Agreement, only certain disciplines should apply to 
them. In this context, the disciplines on illegal, unreported and unregulated (IUU) fishing in 
Article  3.1 and on subsidies to fishing in the unregulated high seas in Article  5.2 have been identified 
as possibly relevant provisi ons. 
4. The issue of non -specific fuel subsidies also is linked with, and therefore should be viewed in 
the light of, Article  8.1bis, which is new in this version of the draft text and is in square brackets. 
This provision requires notification of fuel subsid ies, whether specific or not. For some Members who 
oppose including non -specific fuel subsidies in the scope of the disciplines, including such a 
notification requirement would be an acceptable compromise outcome in lieu of the current text in 
Article  1.2, recognizing the harmfulness of fuel subsidies and collecting information on them without 
subjecting them to the substantive disciplines in Articles 3, 4 and 5. For Members that support 
keeping Article  1.2, notification of such subsidies would be a require d complement to the substantive 
disciplines, rather than a substitute for them. Some Members favouring the notification provision, 
regardless of their views on retaining or deleting Article 1.2, also have noted that it might be useful 
to take up the issue of non -specific fuel subsidies during the first in -depth review of the operation 
of the Agreement provided for in Article 9.4, and that the notified information on such subsidies 
would be very helpful in informing such a review.  
5. Also related is the issue pertaining to fuel tax relief or detaxation schemes. Some Members 
are requesting that such schemes – including those that are specific within the meaning of Article  2 
of the SCM  Agreement – be excluded either from the scope of the Agreement entirely or fro m some 
of the disciplines. This is strongly opposed by others, including those who 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 are among the most harmful for fisheries 
sustainability, such that there is no justification to carve any such subsidies out of the Agreement, 
given its sustainability focus.  
ARTICLE  2: DEFINITIONS  
6. Article  2 contains definitions for five terms tha t 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). There were some 
suggestions to c hange 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 Arti cle 2(c) covers all of the activities 
 
1 WT/MIN(17)/64.  WT/MIN(21)/W/5/Add.1  
 
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  referred to in the definition, i.e., that the activities in question are those that take place at sea, and 
that the Agreement 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.  
7. Concerning the general definition of the term "operator" in 2(e), this was taken from the 
facilitator's work and in a previous draft it was initially a footnote  to one of the substantive disciplines 
on subsidies contributing to IUU fishing. Since then, given that the term "operator" is 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) has remained unchanged except for the deletion in the preceding version of the text of 
the qualifier "on board" that had appeared after "any person". This chan ge reflects the general 
understanding that the term "operator" should not be too narrow or rigid as this could allow the 
disciplines to be circumvented through leasing, other arrangements or corporate structures, where 
someone who was not on board the vess el that was engaged in IUU fishing was directing and 
controlling its activities.  
ARTICLE  3: SUBSIDIES CONTRIBUTING TO ILLEGAL, UNREPORTED AND UNREGULATED 
FISHING  
Overview  
8. Article  3 contains the discipline on subsidies contributing to IUU fishing. In the previous 
version of the draft text, there were two alternative formulations for Article  3.3, one of the core 
provisions of this pillar, and Members' views on this remained d ivergent. In order to bridge the gap 
and facilitate finding a landing zone, a group of Members representing the range of views on this 
issue held a series of dedicated sessions. A possible compromise text emerged from this work on 
Article  3.3, as well as o n other, closely related provisions, including Articles  3.2, 3.4 and 3.5, as well 
as Article 8. This language was subsequently shared with and discussed by the whole NGR. The 
current text of Article  3 reflects this collective work towards striking a delica te balance among a 
number of related provisions on the basic issue of the procedural requirements for coastal Members' 
IUU determinations that would trigger the subsidy prohibition.  
Footnote  3 
9. Footnote 3 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).  
Article  3.1 
10. 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", introd uced 
in brackets in the previous draft text (TN/RL/W/276/Rev.2), is meant to reflect the issue raised that 
the scope of Article  3.1 should be the same as that referred to in Article  1.1, as well as that of the 
other disciplines, all of which apply to both fishing and fishing related activities. Although there were 
some questions about how the additional language would be implemented in practice, there was a 
general sense that consistency and coherence should be maintained across the substantive 
disciplines.  In addition, one suggestion was to amend this language by changing the word ‘such’ 
with the term 'IUU'. In the view  of Members , this provides greater clarity that the language refers 
to those fishing related activities in support of IUU fishing.  
Footnote  4 
11. Footnote  4 defines the term "operator" for the purpose of Article  3 and clarifies the prohibition 
on subsidies to operators. As explained above, the general elements of the definition of the term 
"operator" are found in Article  2(e), whereas the aspects sp ecific to Article  3 appear in this Article.  
12. Footnote  4 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 WT/MIN(21)/W/5/Add.1  
 
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  are comfortable with this language, a few Members support amending this text so that the prohibition 
on subsidies to operators would apply only to subsidies provided to fishing and fishing related 
activities at sea carried out by the vessel engaged in IUU fishing. Other M embers take 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.  
13. This is an important issue for many Members, as it is generally seen as closely linked to the 
other provisions of Article  3. Some delegations seeking to limit the subsidies prohibition on operators  
to the vessels engaged in IUU fishing see this as 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 footnot e on operators should not be seen in isolation. 
This and the related provisions are aimed at striking a delicate balance between an effective subsidy 
prohibition on the one hand, and an assurance that the subsidy prohibition would not be improperly 
trigger ed on the other hand.  
14. The current text, which has not been changed from the version in the preceding draft, 
represents a middle point between those who want the prohibition to apply to all vessels of an 
operator and those who want it to apply only to the v essels 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 ensure 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, an 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 determin ations. This understanding is critical for many Members.  
Article  3.2 
15. 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 e ngaged in IUU fishing when it has been found 
to be doing so by one of the entities listed in Article  3.2, namely a coastal Member, flag State 
Member, or a relevant Regional Fisheries Management Organization or Arrangement (RFMO/A).  
16. The listing of these en tities is not meant to affect their competence to make IUU fishing 
determinations, nor to create a hierarchy among them. The current text contains certain clarifying 
language to this effect.  
• Footnote  6 to the chapeau of Article  3.2 clearly states that "No thing 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 what has always been t he purpose of this footnote. That is, that the fact of 
being referred to in this provision of this Agreement does not change, and especially does 
not expand, the roles of these entities beyond those already existing under other relevant 
international instr uments. This is one of the changes that emerged from the focused work 
of the group of Members tasked with finding a possible landing zone on Article  3.3. 
• The chapeau also states that a vessel or operator is considered to be engaged in IUU fishing 
only if t here 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.  WT/MIN(21)/W/5/Add.1  
 
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  17. Two changes were made to the current draft text compared to the previous version. First, the 
term "waters" in subparagraph  (a) has been replaced with the term "areas". This is a technical 
change following the concerns raised by some Members during the recent discussion on the topic, 
that the term "waters" may be too na rrow to cover all living marine resources of a coastal Member, 
such as sedentary species in a coastal Member's continental shelf area.  
18. In subparagraph  (c), the condition "including through the provision of timely notification and 
relevant information" has  been added with respect to the IUU fishing determination by an RFMO/A. 
This is one of the changes that emerged from the focused work of the group of Members tasked with 
finding a possible landing zone on Article  3.3. One concern identified in that process  was that the 
IUU fishing determinations made by RFMO/As are not subject to the procedural requirements set 
out in Article  3.3(b). Because that language pertains specifically to IUU fishing determinations made 
by coastal Members, it does not squarely fit t he situation of RFMO/As, and in addition 
subparagraph(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, language h as been added requiring the provision by the RFMO/A of timely notification and 
relevant information.  
Article  3.3 
19. Article  3.3 sets out the conditions for triggering the subsidies prohibition in Article  3.1. 
Subparagraph  (a) provides that the "affirmative d etermination" referred to in Article  3.2 is the "final 
finding" of 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 .  
20. Subparagraph  (b) contains specific conditions applicable to IUU fishing determinations made 
by coastal Members. As noted above, this provision was developed through the work of a group of 
Members with divergent views, and the current draft marks a signi ficant change from the earlier 
draft which contained two alternative formulations that reflected the divergence of views. One 
formulation reflected a qualitative approach, which required the IUU fishing determination be based 
on "positive evidence" and fol low "due process". Many Members strongly supported this approach, 
with some suggesting different, but still qualitative, language such as "fair, transparent and non -
discriminatory processes".  
21. On the other side there were equally strong concerns over such a  qualitative approach, which 
was seen as opening a door for the WTO, including its dispute settlement system, to pass judgement 
on the substance of domestic IUU fishing determinations and related domestic judicial and quasi -
judicial processes. Initially, s ome of the Members with these concerns opposed any sort of 
requirements pertaining to IUU fishing determinations that they would make as coastal Members, 
and preferred instead the automatic triggering of the subsidies prohibition once a coastal Member 
made  an IUU fishing determination.  
22. The approach set forth in Article 3.3(b) of this text does not contain language for a qualitative 
standard such as "due process". Instead, the approach is based on completion of  specific required 
procedural steps, set forth  in the chapeau of Article 3.3(b) and its subparagraphs (i) through (iii) of 
Article  3.3(b). The aim 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 subs idy prohibition as it 
applies to the subsidizing Member.  
23. First, the chapeau of Article 3.3(b) requires that the determination be based on relevant 
factual evidence. Second,  subparagraphs (i) through (iii) list what the coastal Member must provide 
to the flag state Member and/or the subsidizing Member if known.  
24. Concerning the factual evidence requirement in the chapeau, this is similar to the previously 
considered term "positive evidence". Many Members considered this to be a well -established and 
universa l concept. As noted above, however, some Members were concerned that such a 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 informa tion. The term 
"relevant factual information" represents a compromise between these opposing views, by requiring WT/MIN(21)/W/5/Add.1  
 
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  that IUU fishing determinations are based on relevant factual information and, leaving no room for 
the quality of that information to be questi oned or judged in the WTO.  
25. 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".  
26. Subparagraph (ii) requires the coastal Member to provide the flag State Member and/or the 
subsidizing Member "an o pportunity 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  8, 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.  
27. Subpara graph (iii) requires the coastal Member to notify the final determination and any 
sanctions applied, including their duration if applicable, to the flag State Member and/or the 
subsidizing Member. Thus, subparagraphs (i) through (iii) set forth in detail t he 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.  
28. A further, multilater al, notification obligation to the Committee established by the Agreement, 
is contained 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 determinations 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.  
29. There is one additional condition in the first part of the text in (b), which contains the 
requirement that the coastal Member IUU fishing determination be "based on relevant factual 
information". This is intended to ensure that IUU fishing determinations are fact -based.  
30. Reading all of these provisions together, the new, current 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 requirements 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 competen t authorities.  
Article  3.4 
31. Article  3.4 concerns the minimum duration of the subsidy prohibition on the basis of an 
affirmative IUU fishing determination. This article, which also was the product of the work of the 
group that developed the drafting for Article 3.3, requires the subsi dizing 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 a pply for at least as long as the sanction on the vessel or operator resulting 
from the IUU fishing determination, or at least as long as the vessel or operator is listed by an 
RFMO/A, whichever is the longer.  
32. While Members broadly agree that proportionali ty between the IUU fishing at issue and the 
subsidy prohibition is important, there were long -standing divergences on how this should be 
reflected in the disciplines. Some Members considered that proportionality is already taken into 
account by the compete nt 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 vesse l or operator WT/MIN(21)/W/5/Add.1  
 
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  should be considered proportional to the offense,  meaning that the minimum duration of the 
prohibition based on the duration of the sanction necessarily also would be proportional to the gravity 
of the violation . 
33. 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 subsidizing 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 required to take proportionality 
into account when determining the duration of the subsidy prohibition.   
34. This issue was perceived to be intrinsically linked to Article  3.3 by many Members, as  one of 
the core issues is whether and how proportionality is taken into account by the entity making the 
IUU fishing determination and deciding on the sanction on or listing of a vessel or operator. Overall, 
in the context of the current draft of Article  3.3, Members are generally comfortable with the 
structure of Article  3.4, which sets the minimum duration of the subsidy 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.  
35. That said, the current drafting contains certain clarifying language on a number of aspects:  
• the current text provides that the subsidizing Member "sha ll" consider proportionality, 
instead of the permissive "may" used in the previous text. This was aimed at clarifying that 
it is not only the subsidizing Member's right, but also its obligation, to take proportionality 
into account when determining the dur ation of the subsidy prohibition;  
• the current text also clarifies that the duration of the sanction on, or the listing by an RFMO/A 
of, a vessel or operator as having engaged in IUU fishing is the minimum duration for the 
subsidy prohibition, by adding th at the subsidy prohibition shall apply "at least" as long as 
the sanction or the listing;  
• footnote  9 has been clarified by removing the illustrative list of terminations of sanctions, as 
it was generally considered unnecessary; and  
• the current text clari fies that sanctions are imposed by coastal Members, whereas listing of 
a vessel or operator as having engaged in IUU fishing is done by RFMO/As.  
36. Importantly, the current text of Article  3.4 reflects a delicate balance in the IUU fishing 
disciplines as a w hole. In relation 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 coastal Member also is required 
to notify any affirmative determinations to the Committee. The subsidizing Member, in turn, is also 
accountable under new Article  3.5 to notify to the Committee of the measures it has taken in 
applying the subsidy proh ibition under Article  3.1. These are viewed as essential elements linked to 
and complementing the current text of Article  3.4, by ensuring that the coastal Member has put the 
subsidizing Member, if known, on notice of the final determination, and the sanct ion 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.  
37. In addition, and as noted above, some Members also consider the definition of  the term 
"operator" in footnote  4 to be part of the overall balance of this pillar, and to be particularly linked 
to Article  3.4. To these Members, if there is no limitation of the scope of the subsidy prohibition to 
the particular vessel or vessels engag ed in IUU fishing, additional flexibility in Article 3.4 would be 
warranted. As noted above, other Members consider that proportionality is taken into account by 
the competent authorities in such situations, as it is in any other IUU fishing determinations . 
Article  3.5 
38. As indicated above, Article  3.5 is new language in the current text, requiring the subsidizing 
Member to notify to the Committee in accordance with Article  8.3 the measures it has taken pursuant 
to Article  3.1, that is the measures it has tak en to implement the subsidy prohibition triggered by WT/MIN(21)/W/5/Add.1  
 
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  an IUU fishing determination. While Article  8.3 is a general provision requiring measures taken to 
ensure the implementation and administration of the disciplines, a more specific language in Article  3 
was considered warranted to provide for transparency on the implementation of the prohibition in 
Article 3.1 in the particular cases where it is applied. Furthermore, as explained above, the current 
drafting effectively provides for alignment of the scope o f 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 disci plines 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 n otified a subsidizing Member that it has clear grounds 
to believe that a vessel in its port has engaged in IUU fishing, the subsidizing Member shall 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. While this text 
has not been changed from that in the previous draft, the notification require ment for the 
instruments referred to in Article  3.7 has been removed based on Members' view that this 
requirement is redundant to the requirement in Article  8.3.  
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 
the least developed country Members, in respect of subsidies for low income, resource -poor and 
livelihood fishing or fishing related activities, up to 12 nautical miles from the baseline. As a peace 
clause, it means that the disciplines do apply but would not be subject to the dispute settlement 
procedures. This is in line with the view shared by many Members, including many developing 
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 particularl y challenging 
for developing 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. 
It should be noted that the period of tw o years and the limit of 12 nautical miles  remain in brackets, 
as does the provision in its entirety, reflecting that discussions on all of the special and differential 
treatment provisions remain ongoing.  
42. It may be worth clarifying some issues about scope  that 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, provide d 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 diffi cult to see how such livelihood 
or nutritional support could be considered a subsidy "to marine wild capture fishing and fishing 
related activities at sea", given that at the time of receipt the recipient was not allowed to fish. 
Furthermore, even if for p urposes 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 STOCKS  
43. 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 overfish ed by a coastal Member or a relevant 
RFMO/A.  WT/MIN(21)/W/5/Add.1  
 
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  Article 4.1  
44. Article  4.1 is the prohibition for subsidies for fishing or fishing related activities regarding an 
overfished stock.  
Article  4.2 
45. The situation where a stock is considered overfished is described i n 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 
best scientific evidence availa ble 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 assessment.  
Article  4.3 
46. 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 t he subsidies 
are to rebuild the stock to a biologically sustainable 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 th e stock to a biologically sustainable level.  
47. The term "biologically sustainable level" (BSL) is defined in footnote 10. 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 fishing related activity is taking 
place, using reference points such as maximum sustainable yield (MSY) or other reference points, 
commensurate with the data available for the fishery; or by a releva nt RFMO/A in areas and for 
species under its competence.  
48. 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 10 does not create any hierarchy or imply any preference 
for the choice of an appropriate reference point for establishing 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 ind icators and methodology for calculating 
BSL in a manner best 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 relevan t RFMO/A.  
49. Some concerns have been raised about the possibility that a subsidy provided in respect of a 
particular fishery might meet the conditions of Article 4.3 (that it or other measures are provided to 
rebuild the stock) and at the same time would fai l to meet the conditions of Article  5.1.1. The concern 
is that under Article 5.1.1, a Member would be required to demonstrate that measures are being 
implemented to maintain  the stock at a biologically sustainable level, while such a demonstration 
would be  impossible if the stock were recognized as overfished. Here, Article 4 addresses and 
provides a specific set of rules for the distinct situation where the stock has been recognized as 
being overfished by the coastal Member or RFMO/A. Indeed, a fish stock recognized as overfished is 
in a particularly vulnerable state and the conditions of Article 4.3 are intended to be more stringent 
than those under Article 5.1.1, as 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 under Article 5.1.1 is to maintain 
the stock at such a level.  
50. Thus, although it is not possible for the Agreement to anticipate every situation that might 
arise, Article 4 is intended to be the specific pro vision to address subsidies provided where a stock 
is already below a biologically sustainable level, and Article 5.1.1 is intended to be the specific 
provision where a stock remains above such a level. While it is not impossible that there could be 
some s ituations where both Article 4 and Article 5 might apply, in most cases, if the stock or stocks 
in question are recognized as overfished, then any subsidies for fishing or fishing related activities 
would need to meet the requirements of Article 4.3.  WT/MIN(21)/W/5/Add.1  
 
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  51. Another issue that has been raised pertains to subsidies 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 sub sidies 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 sust ainable level.  
Article  4.4 
52. Article 4.4 is identical 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 baseli ne 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 subsidie s. It should 
be noted that the period of two years and the limit of 12 nautical miles  remain in brackets, as does 
the provision in its entirety, reflecting that discussions on all of the special and differential treatment 
provisions remain ongoing.  
ARTICLE  5: SUBSIDIES CONTRIBUTING TO OVERCAPACITY AND OVERFISHING  
Article 5.1 and Article 5.1.1  
53. Article 5 contains the disciplines on subsidies contributing to overcapacity and overfishing. 
The core disciplines in this pillar are based on the compromise, "hybrid", approach based on a list of 
presumptively prohibited subsidies qualified by sustainability -based elements. Thus, the discipline  
consists of the prohibition in 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 (i) that presumptively contribute to overcapacity or 
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 Articl e 5 is defined identically to the same term in Article 4, via a single footnote, footnote 
10.  
55. In our discussions of these provisions, questions have been raised over the presumption that 
the listed subsidies contribute to overcapacity and overfishing. One  particular concern is that this 
presumption would mean that no subsidies 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 sugge stions to address this concern by restructuring these provisions, my 
assessment is that the aim and effect of these suggestions is essentially the same as that of the 
provisions as currently drafted, albeit using different approaches. In particular, the pr ovisions 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 in 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 implemented 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.  
56. 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. Ultima tely, as a last phase, 
a dispute settlement proceeding could be initiated 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 potent ial to contribute to overcapacity and overfishing, the list 
does not constitute 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 particular fishery – the question of 
whether a given subsidy is prohibited can only be determined in the context of the fishery in which WT/MIN(21)/W/5/Add.1  
 
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  it is provided. It is exactly that context that is the subject of the demonstration referred to in 
Article  5.1.1.  
57. To elaborate 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 sustainability  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 u nder 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 disput es begun. Most of these were resolved before even getting 
to a ruling by a panel.  
58. 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 about 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.  
Articles 5.2  
59. Article 5.2 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, outs ide of any coastal Member's or coastal non -
Member's jurisdiction and outside the competence of any RFMO/A.  
60. Questions have been raised about the relationship of the prohibition in Article 5.2 and the 
prohibition of subsidies contingent upon, or tied to, fi shing outside the subsidizing Member's 
jurisdiction contained in item (i) of the list of subsidies in Article  5.1. One particular question is 
whether the subsidies referred to in item (i), which can be provided subject to the demonstration in 
Article 5.1.1 , could be provided in the unregulated high seas, and if so, whether Article 5.2 would 
be deprived of its effect. In my reading, the answer is clearly no. First, footnote 10 clearly provides 
that the demonstration referred to in Article 5.1.1 can only be m ade in respect of areas under the 
jurisdiction of a coastal Member and for areas and species under the competence of a relevant 
RFMO/A. In other words, Article 5.1.1 including its footnote is limited to these areas. In conjunction 
with this, Article 5.2 pr ovides for a straightforward prohibition of all subsidies in other areas, namely 
the unregulated high seas outside the jurisdiction or competence of any coastal Member or non -
Member or any RFMO/A. In other words, the sustainability conditionality under 5.1 .1 to grant 
otherwise prohibited subsidies under Article 5.1 de facto  prohibits subsidies 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 fis hing related activities in the unregulated high seas are 
prohibited not only in fact, but also in law.  
Article 5.3  
61. Article 5.3 on subsidies for a vessel not flying the flag of the subsidizing Member contains two 
alternatives.  
62. Alternative 1 contains langua ge reflecting the views of those Members who consider this 
provision to be necessary.  
63. Some Members reject the presumption underlying the prohibition proposed in Alternative 1 
and have been pressing for its deletion. Alternative drafting was suggested to ad dress this concern, 
and this is included in the text as Alternative 2 in Article 5.3.  
64. Both alternatives are in square brackets and more discussion and engagement among 
concerned delegations are needed on this issue.  
  WT/MIN(21)/W/5/Add.1  
 
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  Article 5.4  
65. Article 5.4 concerns spec ial and differential treatment for subsidies regarding overcapacity 
and overfishing. SDT has been an issue of particular concern for many Members. Like Articles 3.8 
and 4.4, Article 5.4 remains an outstanding issue to be addressed in a broader discussion r egarding 
the overall approach to SDT in this Agreement.  
66. Given the diverging views on this topic, before I circulated the previous version of this text (in 
TN/RL/W/276/Rev.2), Members called on me as Chair to try my hand at putting together different 
eleme nts in the form of a new clean text on SDT for Article 5, reflecting where I considered a landing 
zone could lie among different views. On the basis of all the discussions in the NGR, proposals, and 
textual suggestions from Members , I drafted Article 5.4 w ith the aim of increasing convergence 
among Members in this area of the text. Discussions on SDT as a whole are continuing and therefore 
the structure and language of Article 5.4 are the same as those in TN/RL/W/276/Rev.2. The whole 
of Article 5.4 is in br ackets to reflect that the provisions remain under discussion.   
67. Footnote 12, which is new, provides that Article 5.4, that is, the special and differential 
treatment provisions for subsidies regarding overcapacity and overfishing, shall not apply to 
Membe rs 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 is in response to a widespread call during 
discussions on the previous versions of the text that developing c ountry Members with a relatively 
large share of global fishing should not be in the position to avail of the SDT provisions.  
68. Article 5.4 (a) is a transition period allowing developing country Members to grant or maintain 
the subsidies referred to in Artic le 5.1. The duration of this transition period is indicated with a 
placeholder of "X" years in square brackets to reflect the ongoing discussions on this text, ranging 
from the view that there should be no, or at best a very short, transition period to the  demand for 
a transition period as long as 25  years. This provision also states that developing country Members 
intending to use this transition period shall inform the Committee in writing before the date of entry 
into force of the Agreement.  
69. Article 5.4  (b) provides for certain flexibilities that would apply beyond the transition period 
under Article  5.4 (a). Namely, in subparagraph (i) for developing Members with small individual 
shares of marine global capture production; and (ii) for all developing Me mbers in respect of 
subsidies to subsistence, artisanal and small -scale fisheries.  
70. Article 5.4 (b) (i) provides for SDT in the form of an exemption from Article 5.1 based on a 
developing Member's annual share of global marine capture production, known as the 'de minimis' 
approach. Concerning the " de minimis " level itself, I note that the figure of a 0.7 per cent share has 
been suggested, and this has been used as a starting point for discussions. The figure remains in 
brackets, as it n eeds further discussion. The provision provides that a Member’s share of marine 
global capture production is to be calculated on the basis of the most recent data published by the 
UN Food and Agriculture Organization (FAO). The statistics in question are t hose for wild marine 
capture production with the same product scope as the definition of fish in Article 2 (a), and excluding 
aquaculture and inland fishing.  
71. Article 5.4 (b) (ii) provides for SDT for artisanal and small -scale fisheries, defined as low -
income, resource poor and livelihood fishing and fishing related activities within 12 nautical miles 
from the baseline. Several Members have indicated that in some cases artisanal fishing may go 
beyond 12 nautical miles, and some thus have suggested extending  the geographical limit up to the 
limit of a developing country Member's EEZ. Other Members, however, believe that no vessel 
navigating beyond 12 nautical miles should be considered as artisanal fishing, and thus oppose 
extending this limit in the provisio n. To reflect the need to further discuss this issue, the number 12 
in "12 nautical miles" is in square brackets.  
72. From our extensive discussions on this issue to date, it has been suggested that Members 
availing themselves of the SDT provisions neverthele ss should aim to provide subsidies 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. To reflect this discussion, 
Article 5.4(c) was i ncluded in this Article in the previous text (in TN/RL/W/276/Rev.2), and it still 
remains.  WT/MIN(21)/W/5/Add.1  
 
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  73. As stated earlier, while the drafting of Article 5.4 is my best and honest attempt at presenting 
a possible landing zone, divergences remain with regard to specific  figures, as well as the overall 
structure. A broader discussion regarding the overall approach to SDT in this Agreement is ongoing.  
ARTICLE  6: SPECIFIC PROVISIONS FOR LEAST -DEVELOPED COUNTRY MEMBERS  
74. Article 6 contains specific 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.  
75. Article 6.2 provides for a further transit ion period once an LDC Member has graduated from 
LDC status. The operational language of this provision is identical to that in Article 5.4(a), and the 
duration of the transition period is reflected as “X” in square brackets, reflecting the need for furthe r 
discussion. The difference from Article 5.4(a) is, as noted, that for LDCs this transition period would 
begin when they graduate, rather than at entry into force of the Agreement.  
76. Article 6.3 calls for Members to exercise due restraint in raising matter s involving an LDC 
Member, and to explore solutions taking into consideration the specific situation of the LDC Member 
involved, if any. Furthermore, this provision adds that LDC Members shall endeavour to ensure that 
the subsidies provided do not contribu te to overcapacity and overfishing. This is intended to mirror 
in the LDC Member -specific provisions the same "best endeavour" language that has been added to 
SDT in Article 5.4 (c) pertaining to developing country Members.  
77. Articles 6.2 and 6.3 are in bra ckets to reflect that discussions on all of the SDT provisions of 
the Agreement are ongoing.  
ARTICLE 7: TECHNICAL ASSISTANCE AND CAPACITY BUILDING  
78. Article 7 concerns technical assistance and capacity building for developing country Members, 
including LDCs , for the purpose of implementing these disciplines.  
79. It also refers to the establishment 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.  
80. Article 7 is in brackets to reflect that discussions on all of the SDT provisions of the Agreement 
are ongoing.  
ARTICLE  8: NOTIFICATION AND TRANSPARENCY  
81. Article 8 sets forth the provisions on notifications and transparency.  
Article 8.1 chapeau  
82. 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 information requirements under Articles 8.1(a) 
and 8.1(b) are without prejudice to Article 25 of the SCM Agreement.  
Article 8.1 (a)  
83. 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 14 providing that this information 
is in addition to that provided pursuant to Article 25 of the SCM Agreement.  
84. Footnote 15 to Article 8.1(a), which is in brackets, 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 f or developing country 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 i n Article 5.4(b)(i). That provision, as well as the specific number for the de WT/MIN(21)/W/5/Add.1  
 
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  minimis threshold, are in brackets, and as a consequence footnote 15 and the specific number for 
the de minimis threshold also are in brackets.  
85. Article 8.1(a)(ii) requires the provision of certain catch data for the fishery 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 repo rting by species or group of species. In 
addition, footnote 16 provides that for multispecies fisheries a Member may provide other relevant 
and available catch data.  
Article 8.1 (b)  
86. Article 8.1(b) requires notification "to the extent possible" of certain information pertaining to 
the fisheries, stocks and vessels in respect of which subsidies are provided.  
87. 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 u sed by the FAO, for example in its SOFIA report. In addition, the reference points 
used to establish the status are to be notified.  
Article 8.1bis  
88. Article 8.1bis is a provision for the notification of information pertaining to non -specific fuel 
subsidies t o fishing and fishing related activities. This issue is related to Article  1.2, in the section 
on Scope, which also is in square brackets. Footnote 18 clarifies that this provision is without 
prejudice to Article 25 of the SCM Agreement. The numbering of t his item as Article 8.1"bis" simply 
reflects that there are several possible places where this provision, if agreed, could be placed. For 
example it could be under Article 8.1(a), Article 8.1(b), or as a separate provision under Article 8.  
89. In the discussio n of this provision, it has been noted that the information that would be 
collected could be informative in the reviews of the substantive operation of the Agreement under 
Article 9.4.  
90. This provision remains in brackets, as it would be part of the discuss ion and decision to be 
made on the overall approach to non -specific fuel subsidies and fuel tax relief or detaxation schemes .  
Article 8.2  
91. Article  8.2 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.  
92. Article 8.2(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.  
93. This provision 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 transparency for access agreements, additional information 
to be included in the notification was listed  in TN/RL/W/ 276/Rev.2, including the titles, parties, full 
text and other details of access agreements or arrangements, and how such access is subsequently 
used. However, some Members were concerned that these additional transparency requirements 
were exce ssive and unnecessarily burdensome.  
94. The changes in this draft are an attempt to find a middle ground by deleting items (iv), (v) 
and (vi) from the list in Rev.2, with item (iii) in the list, the full text of the agreement or arrangement, WT/MIN(21)/W/5/Add.1  
 
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  to be notified "to  the extent possible" as parts of these agreements or arrangements may include 
confidential or otherwise non -disclosable information.  
Articles 8.3 and 8.4  
95. Articles 8.3 and 8.4 refer, respectively, to notification of measures in existence or taken to 
ensur e 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.  
96. Under Article 8.3, the information to be notifie d 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 well as new measures to implement 
the prohib itions in Article 3. This latter is linked to the notification obligation in Article  3.5. 
97. The scope of Article 8.4 is broader and more general. It requires the provision of a description 
of a Member's fishing regime, including references to the Member's re levant 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 could be made 
by providing a link to an offi cial website.  
Article 8.5  
98. Article  8.5 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 8.6  
99. Article  8.6 links using the flexibilities or the sustainability qualifications to prohibitions in the 
different pillars of the disciplines to certain notification requirements, both those in 4.3 and Article 
5.1.1 available to all Members, and those in the various provisions  containing special and differential 
treatment for developing and LDC Members.  
100.  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 of the SCM Agreement and Article 8.1 of this 
Agreement. All of the notification requirements referenced in subparagraph (a) of Article 8.6 already 
apply or are meant to apply to a ll 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.  
101.  To invoke Article 4.3 or Article 5.1.1, subparagraph  (b) of Article  8.6 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.  
Article 8.7  
102.  Article 8.7 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 statu s, conservation and 
management measures, and information regarding IUU determinations and listings.  
Article 8.8  
103.  Article 8.8 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.   
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  ARTICLE 9: INSTITUTIONAL ARRANGEMENTS  
104.  Article 9 contains provisions relating to institutional arrangements. These provisions reflect 
among other things convergence around the idea that the disciplines on fisheries subsidies should 
be a standalone agree ment rather than an annex to the SCM Agreement, the other option that has 
been under discussion.  
105.  Article 9.1 establishes a fisheries subsidies Committee, 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.  
106.  Article 9.2 provides that the Committee shall examine the information notified under the 
Agreement not less than every two years. Because the notification requirem ents are found in 
Article  8 and Articles 3.3 and 3.5, this provision refers to these two Articles generally.  
107.  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.  
108.   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 purpose is to assess the effectiveness 
of the Agreement against its overall objective and to identify possible modifications to improve its 
operati on, 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 appl ying the disciplines and to evaluate their 
effects on the sustainability of fisheries. The text reflects the widely held view that five years after 
entry into force, and every three years thereafter, would be appropriate intervals for these reviews.  
109.  Article 9.5 requires the Committee to maintain close contact with the FAO and other relevant 
international organizations in the field of fisheries management, including relevant RFMO/As.  
ARTICLE  10: DISPUTE SETTLEMENT  
110.  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.  
111.  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".  
112.  Footnote  21 also has been added, purely for clarity. This fo otnote 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. Th e reason was to address a concern, to avoid 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.  WT/MIN(21)/W/5/Add.1  
 
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  113.  Footnote 20 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 unpred ictability 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 20 
states that subparagraphs 1(b) and 1(c) of Article XXIII of the GATT 1994 and Article 26 of the DSU 
shall not apply to the settlement of disputes under the Agreement on fisheries subsidies.  
114.  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 di spute 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 provi sions to address such matters. Other Members have 
considered that this is not necessary, as the drafting of the disciplines themselves should make clear 
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.  
ARTICLE  11: FINAL PROVISIONS  
Overview  
115.  Article  11 contains the "Final Provisions" of the draft Agreement. This Article contains six 
paragraphs that do not fit readily into the other ten provisions, or that apply to some, but not all, of 
them. This Article has been simplified and rearranged to improve clarity.  
Article  11.1 
116.  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 fishing or fishing related activities regarding such stocks. This can be viewed 
as an application of a precautionary approach to fisheries management.  
117.  As for th e requirement of both due restraint and special care, this is to reflect that these are 
complementary 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 
118.  Article  11.2 provides for an exception applicable to all Members for disaster relief.  
119.  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 s pills and similar events, all with a 
direct impact on the marine environment and the lives and livelihoods of those that depend on 
fishing. Footnote 22 clarifies that this provision does not apply to economic or financial crises, to 
respond to concerns tha t an unmodified reference to "disasters" could open a wide loophole in the 
disciplines.  
120.  The chapeau to this provision states that this exception does not apply to subsidies to IUU 
fishing (Article 3) or to subsidies regarding overfished stocks (Article 4).   
121.  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 restoring the affected fishery and/or fleet to its pre -disaster level. WT/MIN(21)/W/5/Add.1  
 
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  Previous references to sustainability criteria have been deleted based on discussions among 
Members, includi ng that these could make the provision redundant with Article 5.1.1.  
Article  11.3 
122.  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 is sues of territorial 
claims or delimitation of maritime boundaries, including in the context of WTO dispute settlement. 
Heavy brackets have been put around this Article to indicate that intensive work is ongoing on this 
very sensitive set of issues at the t ime this document is being finalized. It is expected that the final 
version of the Agreement will contain revised  text in this regard.  
Article  11.4 
123.  Article  11.4 contains a disclaimer to clarify that nothing in this Agreement shall prejudice the 
jurisdictio n, rights and obligations of Members under international law, including the law of the sea.  
124.  This provision draws on and reflects extensive discussions aiming to ensure that existing rights 
and obligations under other international instruments, and more gen erally under international law, 
are not affected by this new Agreement. The specific reference 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 the 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 considere d the international 
law of the sea, which in turn applies in an individual way to each individual Member depending on 
what it has accepted.  
125.  Finally, on Article 11.4, footnote 23 clarifies that the law of the sea includes the rules and 
procedures of RFMO/A s. This it to ensure that the WTO does not become involved, through the 
operation of this Agreement and dispute settlement, in internal matters of RFMO/As.  
Article  11.5 
126.  Article 11.5 is intended to address  concern raised over possible implications of the reliance in 
certain provisions of this Agreement on actions of RFMO/As. In particular, 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 reflect 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 
127.  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 o r nullify the 
rights and obligations of Members under that Agreement.  
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