WORLD TRADE  
ORGANIZATION  TN/RL/W/209 
5 June 2007 
 (07-2302) 
Negotiating Group on Rules Original:   English 
  
 
ACCESS FEES IN FISHERIES SUBSIDIES NEGOTIATIONS 
 
Communication from the ACP Group
 
 
  The following communication, dated 1 June 2007 is being circulated at the request of the ACP Group. 
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1. For the purpose of this communication, Fisheries Access Agreements ("FAAs") are defined as 
contractual arrangements whereby governments or private fishing fleets pay coastal states for access 
to fisheries resources within the coastal  states' exclusive economic zones ("EEZ").
1  The UNCLOS2 
provides the legal basis and economic motivation for the negotiation of access agreements between 
coastal states and distant water fishing nations ("DWFNs" ) or their fleets.  In addition, it clearly states 
that access agreements may be subject to terms and conditions including the "payment of fees and 
other forms of remuneration"3, commonly referred here to as fishery access payments.  We understand 
that FAAs come in two main forms.  They may be government-to-government  (whereby the DWFN 
government purchases fisheries access rights from coastal state governments), or private-to-
government  (whereby the private sector of the DWFN  purchases those fisheries access rights from the 
coastal state governments).4  It is the former that falls under the ambit of WTO fisheries subsidies 
negotiations and hence forms the subject matter of this communication.   
2. Through a stocktaking exercise, we note that a few of proposals on fisheries subsidies tabled 
within the Negotiating Group on Rules have addressed  the issue of fishery access payments.  There is 
a general agreement amongst the WTO membership that government-to-government payments are not 
subsidies and hence should be excluded from a subs idy prohibition.  We commend the United States 
for articulating an explicit exclusion of governme nt-to-government transfer of funds for obtaining 
access rights from the scope of new disciplines.  However, this exclusion does not constitute a 
concession from a negotiating standpoint.  Governme nt-to-government transfers of funds clearly 
constitute state-state payments for the legitimate tr ading of a natural resource consistent with the 
UNCLOS.  Pursuant to Article 1.2 of the SCM Agreem ent, a subsidy defined in Article 1.1 is subject 
to the SCM Agreement disciplines regarding proh ibited subsidies (Part II), actionable subsidies 
(Part III) and countervailing measures (Part V) only wher e the alleged subsidy is "specific".  Article 2 
of the SCM Agreement provides that a subsidy must be "specific to an enterprise or industry or group 
of enterprises or industries  ... within the jurisdiction of the granting authority ".  The transfer of funds 
                                                      
1 The breadth of the EEZ is an  area not exceeding 200 nautical miles from defined baselines.  
Article 57, 1982 United Nations Convention on the Law of the Sea ("UNCLOS"). 
2 Refer to UNCLOS Article 62.4(a) which states that where a coastal state does not have the capacity to 
harvest its determined entire allowabl e catch, "it shall, through agreements  or other arrangements ... give other 
States access to the surplus of the allowable catch". 
3 Article 62.4(a), UNCLOS. 
4International Centre for Trade and Sustainable Development (ICTSD), Natural Resources, 
International Trade and Sustainable Development: Fi sheries Access Agreements, 2006, pp.  73-74  < 
http://www.trade-environment .org/output/ictsd/resource/ Fish_accessagreements.pdf >  accessed 17 April 2007 TN/RL/W/209 
Page 2  
 
  from a DWFN government to a coastal state  government  does not result in a subsidy that is specific to 
an enterprise or industry , and certainly not to one within the jurisdiction  of the DWFN.  Furthermore, 
they would not qualify as a subsidy subject to curre nt disciplines of the Agreement on Subsidies and 
Countervailing Measures ("ASCM").   
3. The debate today is steered towards a second-le vel of transactions relating to FAAs, which 
deal with the onward transfer of fishing rights fro m the DWFN government to its private fishing fleets 
and the possibility of a subsidy component therein.   A reported characteristic of some government-to-
government FAAs is that the DWFN government tr ansfers those access rights to its private fishing 
fleet for less than the full amount of the access fees paid to the coastal government. 
 
4. To address this issue, Brazil
5 has proposed specific language  as follows, "In case of a 
government-to-government payment for access by fore ign vessels to fishing resources of a developing 
country's maritime jurisdiction or to quotas or an y other rights established by any regional fishery 
management organization or arrangement ("access rights" ), a fishery subsidy shall be deemed to exist 
if a benefit is conferred in the onward transfer  of those access rights from the paying government." 
 
5. Argentina6, in its most recent proposal states that  there is "a growing consensus that 
government-to-government payments are not deemed to be fisheries subsidies."7  Yet Argentina's 
proposal also provides that "[I]t is understood, how ever, that the general disciplines [on fisheries 
subsidies] should include the instances in which th e transfer of such rights by a government to 
specific enterprises is not done in exchange for a fair trade price".8 
 
6. Norway , as we understand, has not proposed a textual language, but has expressed 
willingness to consider suggestions along the lines of mandating the fishing industry of developed 
Members to pay back their governments for the financing of such arrangements.    
7. The US
9 proposal considers onward transfer of access rights to be actionable under certain 
conditions.  The proposed Article 2.2 of TN/RL/GEN/ 145 reads, "The further transfer of those access 
rights to the Member's fishing fleet is covered by  this Annex but is not prohibited under Article 1, 
provided that: (i) the Member's fishing fleet pays co mpensation comparable to the cost the fleet would 
otherwise have to pay for access to the fisheries resources; (ii) the terms and conditions of access, 
including the compensation paid by the fishing fl eet, are published; and (iii) the access arrangement 
provides for a science-based assessment and monitori ng of the status of the fisheries resources in 
question and for compliance with applicable fishery management systems".   
 
Concerns of the small coastal and island states of the ACP Group 
 8. The role of revenues from fishery access paymen ts in the economic development of small 
island and coastal states of the ACP is very signifi cant and cannot be underestimated.  As an example, 
according to a study commissioned by the Intern ational Centre for Trade and Sustainable 
                                                     
 
5  WTO document TN/RL/GEN/79/Rev.4, 13 March 2007 
6  WTO document TN/RL/GEN/138/Rev.1, January 2007. 
7 Paper from Argentina, Fisheries Subsid ies: Special and Differential Treatment, 
TN/RL/GEN/138/Rev.1, 26 January 2007, para. 6. 
8 Ibid, Para. 6.  This can be contrasted with Arge ntina's earlier, broader, proposal which states, 
"Payments or other financial transfers received in direct  or indirect exchange for access by foreign vessels to 
fishing resources of a developing country's EEZ or an y other rights established by a regional fisheries 
management organization shall be exempt from the prohibition [on fisheries subsidies]".  Paper from Argentina.  Fisheries Subsidies:  Special and Differential Treatment, TN/RL/GEN/138, 1 June 2006, p. 5. 
9 WTO document TN/RL/GEN/145, 22 March 2007  TN/RL/W/209 
 Page 3 
 
 
  Development (ICTSD)10, more than 25 per cent of total gove rnment revenue is obtained from access 
fees in several of the Pacific Island Countries.  Access fee income (apart from direct impacts on 
revenue generation), have an indi rect and positive impact on employ ment generation, value-addition 
(growth of upstream and downstream activities) and stimulating effects on the development of fishing 
efforts in coastal and island states.  Hence, all tr ansactions relating to fisheries subsidies including 
onward transfer of rights should be excluded from disciplines as bringing any element of fisheries 
access arrangements into the scope of new disciplin es would have a bearing on the total amount of 
fishery access payments made at the government-to-government level. 
 
9. We are all aware that for a financial contribut ion to be considered as a subsidy under the 
ASCM, it is necessary that it confers a benefit on a recipient.  The notion of "benefit", within the 
meaning of the provisions of the ASCM, refers to  the requirement that the financial contribution 
"places the recipient in a more advantageous positio n" with jurisprudence confirming that the "only 
logical basis for determining the position of the re cipient ... absent the financial contribution is the 
market ".11  Since the fishery access payments made are usually the result of a series of bilateral 
negotiations with the DWFNs, there appears to be  no workable "market" benchmark against which 
one can examine whether the recipient is bette r off than it would otherwise have been.   
 10. An additional complicating factor is that it is not always easy to segregate whether the amount 
paid in "access fees" by a DWFN government to the coastal state represents only the commercial rate 
for access to those fisheries or al so includes a component of development assistance.  The Appellate 
Body has confirmed that the interpretation of "benef it" in Article 1.1(b) should focus on whether there 
is a benefit to a recipient rather than a cost to government.
12   
 11. We thus remain convinced that all transacti ons related to fisheries access fees should be 
exempted from any new disciplines on fisheries subsidies.  While an explicit exclusion of 
government-to-government transfer of funds is merited under new rules for purposes of security and 
predictability, the onward transfer of DWFN right s should also be treated as non-prohibited and non-
actionable for all of the reasons outlined above.    
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10 Mbithi (2006), "Fisheries Access Agreements – Tr ade and Development Issues", Issue Paper no.2, 
International Centre for Trade and Sustainable Development, April 2006, pp. 13 
11 Panel Report, Canada – Measures Affecting the Export of Civilian Aircraft , WT/DS70/R, adopted 
20 August 1999, para. 9.112.  Endorsed in Appellate Body Report, Canada – Measures Affecting the Export of 
Civilian Aircraft , WT/DS70/AB/R, adopted 20 August 1999, paras. 149-161. 
12 Ibid, para. 155.