TN/RL/W/261  
 
29 July 2015  
(15-3902)  Page: 1/4  
Negotiating Group on Rules  Original: English  
 
 TECHNICAL PAPER ON FISHERIES SUBSIDIES 
COMMUNICATION FROM NEW ZEALAND 
The following communication, dated 28 July 2015, is being circulated at the request of the 
Delegation of New Zealand. 
 
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 1  INTRODUCTION 
1.1.  Argentina, Iceland, New Zealand, Norway, Peru and Uruguay submitted on 19 June 2015 to 
the Negotiating Group on Rules proposal TN/RL/W/258, 'Elements for Effective Disciplines on 
Fisheries Subsidies in the Post-Bali Work Progra mme'. The cosponsors presented the proposal to 
the Negotiating Group on Rules on 1 July where other Members expressed an interest in 
understanding further the proposal and posed a number of questions. 
1.2.  The proposal set out elements  of a fisheries subsidies outcome. It was not a textual proposal. 
The purpose of the proposal in the first instance was to initiate a discussion on how fisheries 
subsidies disciplines would be taken up and to listen to Members' reactions to the proposed 
elements. 
1.3.  Given Members' responses, this additional technical paper is now provided to explain some of 
the terms and concepts that feature in the proposal. None of these are new in the sense that they 
have always been a feature of the fisheries subsidies negotiations and are well established outside 
of the WTO such as in fisheries management instruments. Over time however many negotiators based in Geneva have changed since the negotiations were active therefore it is timely to refresh 
our collective memories on these issues. 
2  TERMS AND CONCEPTS 2.1.  As noted in TN/RL/W/258, prohibitions are necessary to deliver on the Hong Kong mandate 
to 'strengthen disciplines on subsidies in the fisheries sector, including through the prohibition of 
certain forms of fisheries subsidies that contri bute to overcapacity and over-fishing'. The 
cosponsors proposed that there should be prohibitions on: 
i. subsidies on activities affecting overfished stocks; and 
ii. subsidies provided to any vessel engaged in IUU fishing  
2.2.  The terms overfished and IUU fishing were the subject of questioning and comments, as were 
the terms overcapacity and overfishing and the co ncept of a standstill commitment. We therefore 
provide here some background to these terms and concepts and how they relate to each other. In 
doing so, it is also appropriate to include the related terms of 'maximum sustainable yield' and 
'fish stock'.  TN/RL/W/261 
 
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  2.3.  This paper is intended to help negotiators understand the terms and their relationships. It 
draws on existing definitions or terms that are used elsewhere1 and have been used in the WTO, 
but because these are often very technical, being drafted for a specific legal or scientific purposes, the approach taken here has been to try to provide 'plain English' explanations. It should be 
stressed that this paper does not try to create new definitions and nor is the paper a 
comprehensive legal or technical analysis of these terms. The paper is also without prejudice to the individual positions of New Zealand or the othe r cosponsors on these issues either in the WTO 
or in other fora. 
Overfished stocks  2.4.  The term 'overfished' refers to the situation where the size of a fish stock, that is, the 
number or abundance of the fish, is so low that ca tch needs to be reduced in order to return the 
fish stock to levels at which it can provide the 'maximum sustainable yield' (MSY). The term 
'overfished' is commonly applied for stocks that are below one-half of the MSY level, although sometimes different levels or reference points ar e used. Overfished stocks are often also referred 
to as being overexploited. 
Overfishing 2.5.  The term 'overfishing' refers to the situat ion where the percentage or proportion of a stock 
that is removed by fishing each year exceeds the level associated with MSY. Where overfishing is 
occurring, the percentage of the fish stock being caught is not sustainable so, unless reduced, a 
stock will either become or remain overfished. Overfishing is therefore a precursor to a stock becoming overfished. 
2.6.  Overfishing can occur on fish stocks that are not overfished (i.e. fully or under exploited 
stocks) as well as those that are already overexploi ted. If one thinks of overfishing as the action, 
then overfished stocks are the result of that action. 
Overcapacity 
2.7.  The term 'overcapacity' refers to the situation where the number of fishing vessels or the size 
of a fishing fleet exceeds that required to harvest the sustainable or allowable catch. Overfishing is 
therefore a result of overcapacity, with both lead ing to stocks becoming overfished. Overcapacity 
is sometimes also referred to as excess capacity or overcapitalisation.  
Maximum Sustainable Yield 2.8.  Maximum sustainable yield (MSY) is the largest long-term catch or yield that can be taken on 
an on-going basis from a fish stock without compromising its sustainability. 
Fish Stock 2.9.  A fish stock is a population of a given species in a defined geographic area that is treated as 
a unit for fisheries management purposes. If a fish stock is considered overfished, this does not 
therefore mean that the wider species or other stocks are overfished. Different stocks of the same species can be and often are at different levels of abundance and are assessed by fisheries 
scientists separately. 
IUU Fishing 2.10.  The term 'illegal, unreported and unregulated (IUU) fishing' is described in paragraph 3 of 
the 2001 International Plan of Action to Prevent,  Deter, and Eliminate Illegal, Unreported and 
Unregulated Fishing (IPOA-IUU) of the United Nations Food and Agriculture Organization 
(UN FAO). Although this is a voluntary instrument it has since formed the basis of subsequent regional and international guidelines and instruments.  
                                               
1 This includes the 1982 UN Convention on the Law of the Sea; the 1995 UN FAO Code of Conduct; the 
UN FAO Fisheries Glossary http://www.fao.org/fishery/collection/glossary_fisheries/en . TN/RL/W/261 
 
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  3  ELABORATION OF TECHNICAL ISSUES 
3.1.  A range of Members' questions related to issues of how the elements in TN/RL/W/258 would 
be elaborated in a text. As noted, TN/RL/W/258 was not a textual proposal, with this level of detail more appropriately following further discussions with Members. Several points can however be 
noted at this juncture in terms of how these elements might be elaborated. 
Prohibitions 3.2.  As set out in the proposal, the two prohibitions should apply to all subsidies from all 
Members. Clearly there are issues of scope however.  It would be perverse for example to prohibit 
subsidies for stock assessments. Consistent with the SCM Agreement, the prohibitions and standstill would also be limited to specific subsidies. Horizontal subsidies would be out of scope.  
3.3.  To the extent possible, any text would draw  on existing instruments, policies and processes. 
This would be necessary in the interests of time, but also to avoid unnecessarily revisiting matters 
previously agreed elsewhere and to avoid the WTO unduly venturing outside of its core area of responsibility.   
3.4.  Indeed, such an approach was taken by Me mbers in their proposals during the negotiations
2. 
In the case of a prohibition on subsidies to IUU fishing vessels, proposals pointed to the IPOA-IUU description of IUU. In determining the status of fish stocks, proposals drew on and pointed towards 
existing principles and measures such as using the best available scientific information, existing 
fish stock reference points, and pre-existing credible and science based stock assessments. 
Standstill 3.5.  It was proposed that a standstill commitment be made using language similar to that 
adopted at Rio+20. The idea behind this proposal was that in the absence of such a provision, 
there would be no new disciplines on Members' provision of harmful subsidies for legal fishing on fully or underexploited stocks. Members would therefore be free to expand existing levels of 
subsidisation subject only to the existing SCM Agreement provisions. Accordingly, it was envisaged 
that Members would recommit to what is essentia lly agreed language and that this could be 
monitored through the WTO. 
3.6.  The reference point for such a standstill commitment is Rio+20. The Rio+20 commitment is 
contained in paragraph 173 of UN General Assembly Resolution 66/288 'The Future We Want' of 11 September 2012: 
'173. … Given the state of fisheries resources, and without prejudicing the WTO Doha 
and Hong Kong ministerial mandates on fisheries subsidies or the need to conclude 
these negotiations, we encourage States to eliminate subsidies that contribute to overcapacity and overfishing, and to refrain from introducing new such subsidies or 
from extending or enhancing existing ones.' 
3.7.  We envisage that any commitment in the WTO would use similar language to Rio+20. It is not proposed that the standstill take the form of a numerical binding. Any standstill commitment 
should also take into account the development and food security needs of LDCs and SVEs. 
Built-in-agenda 3.8.  Given the limited disciplines envisaged, it was proposed that a built-in-agenda be established 
to continue the fisheries subsidies ongoing reform process. The cosponsors have ideas but also 
open minds on how the built in agenda might be framed. We would note that there are several 
examples of built in agendas within existing WTO Agreements from which we can draw inspiration. 
                                               
2 Examples include Communications  from Japan, the Republic of Ko rea, and the Separate Customs 
Territory of Taiwan, Penghu, Kinmen and Matsu (JOB(06)/95); the Republic of Korea (TN/RL/GEN/168); 
the United States (TN/RL/GEN/165); Argentina, Chile, Costa Rica, Egypt and Uruguay (TN/RL/GEN/173/Rev.2); and Brazil, China, India and Mexico (TN/RL/GEN/163). TN/RL/W/261 
 
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  These include but are not limited to those within the Agreement on Agriculture, the 
TBT Agreement and the SPS Agreement. 
4  CONCLUSION 4.1.  This paper provides some initial explanation of some of the key terms and concepts that have 
been the subject of interest of Members. The pape r is not intended to be exhaustive but instead 
aims to help create some shared understanding amongst Members about how the issues have been treated before within and outside of th e WTO negotiations, and thus how the proposed 
elements might be taken forward in the lead up to MC10. 
 
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