WORLD TRADE  
ORGANIZATION  TN/RL/W/169 
13 December 2004 
 
 (04-5488) 
Negotiating Group on Rules Original:   English 
 
  
ADDITIONAL VIEWS ON THE STRUCTURE OF THE  
FISHERIES SUBSIDIES NEGOTIATIONS 
 
Communication from the United States
 
  The following submission, dated 13 December 2004, is being circulated at the request of the 
Delegation of the United States. 
 
_______________ 
 
 
 The United States, along with other WTO Members, applauds the good progress that has been 
made in the fisheries subsidies negotiations to date.  In particular, at the last several meetings of the 
Negotiating Group on Rules Members have engage d in a wide-ranging discussion concerning the 
appropriate structure of the negotiations.  Many Members, including the United States, consider it 
essential to get the framework for the negotiations right from the outset.   A submission by six Members, discussed at the November 2004 meeting, persuasively 
summarized the advantages of an approach – the so-c alled “top down” approach -- that would centre 
on a prohibition, combined with appropriate exceptions.
1   
 
 The United States believes that a top dow n approach potentially offers a simple, 
administrable. enforceable and realistic structure fo r strengthened disciplines on fisheries subsidies, 
with sufficient flexibility to address the realities of the fisheries sector and the legitimate interests of 
Members.  In contrast, the alternative approa ch proposed by some Members – the “bottom up” 
approach – appears to contemplate a very small nu mber of prohibited subsidies and a large number 
of permitted subsidies.  In our view, the bottom up  approach could potentially lead to a set of 
disciplines weaker than the current rules.2 
 
 This submission is intended as a further contribution to Members’ understanding of the top 
down approach and how a negotiation centred on such an approach could be structured. 
 
Scope of Prohibition 
 
 Our view is that the primary focus of the negotiations should be to strengthen disciplines on 
fisheries subsidies that contribute directly to overcapacity and overfishing.  We have proposed in an 
earlier submission that the fundamental discipline ap plicable to these particularly harmful subsidies 
should be a prohibition.3  Other Members have expressed similar views.4  However, we recognize that 
there may be several ways to make such a prohibiti on operational in order to achieve this end.  For 
example, it has been observed that it may be difficu lt to incorporate the concepts of overcapacity and 
                                                      
1 TN/RL/W/166 
2 TN/RL/W/164 
3 TN/RL/W/77 
4 See TN/RL/W/82; TN/RL/W/115; TN/RL/W/154. TN/RL/W/169 
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 overfishing directly into the WTO rules system, given the difficulties of interpreting these concepts in 
the fisheries context.
5  Likewise, a prohibition limited to subsidies for vessel construction ( i.e., capital 
costs), as suggested in one submission,6 would fail to capture other types of programmes that are 
potentially trade-distorting and may have adverse conservation effects ( e.g., price supports for 
fisheries products).   
 
 Obviously, the precise scope of the prohibition will need to be negotiated among Members.  
The United States is open to consideration of alternative approaches, including the broader prohibition 
discussed in the submission of the six Members.    
 
 In a previous submission in the Committee on Trade and Environment, the United States has given examples of programmes that should not be the target of strengthened disciplines because they 
generally do not contribute to overcapacity or overfishing:  e.g., government programmes for fisheries 
management and enforcement and government-funde d programmes that facilitate the transition to 
sustainable fisheries.
7  The top down approach affords sufficient flexibility to address these 
programmes appropriately.  The submission of the six Members acknowledges that many existing fisheries subsidy programmes will likely not be prohibited in this round of negotiations.
8  The types of 
programmes the submission suggests as candidates for exceptions to the prohibition coincide very 
closely with the examples the United States previously identified.9  As a further element of flexibility, 
a top down approach could also allow for a reasonab le transition period for Members to reconsider 
their programmes and adapt them as needed to strengthened disciplines. 
 
Transparency in Negotiating Exceptions  
 
 We agree with the six Members that a particularly strong advantage of a top down approach is 
its potential to improve the transparency of Member s’ subsidy programmes.  For this reason,   it is 
important that Members ground their consideration of possible exceptions in a thorough discussion of 
Members’ particular current fisheries programmes rather than confining the discussion to broad 
“categories” of fisheries subsidies.  While there has been considerable fo cus on fisheries subsidy 
categorization in studies by the OECD, APEC, UNEP and others,10 it is less clear what particular 
subsidy programmes would be encompassed in a given category.  Thus, it is possible that even a 
seemingly benign category could be interpreted so broadly that it would result in the exclusion of 
programmes that some Members would wish to discipline. This problem would be avoided if 
Members were to bring forward information about particular programmes in the context of 
negotiating exceptions.  Such a discussion would al so alleviate concerns that exceptions to the 
prohibition would be open-ended and could lead to circumvention. 
 
                                                      
5 TN/RL/W/154. 
6  See TN/RL/W/82. 
7 WT/CTE/W/154 (2000), section II, paragraph 2.  In the CTE paper, the United States suggested that 
certain programmes do not contribute to overcapacity and overfishing:  e.g., “government programmes for 
fisheries management, science, enforcement, and most publicly financed port and landings facilities.  Government-funded programmes that facilitate the transition to sustainable fisheries are also not included in this 
list.  Examples of these activities are publicly-funded programmes that:  reduce fishing capacity (buybacks), 
enhance resources (hatcheries), support the development and adoption of clean harvesting technology (bycatch reduction devices), and facilitate adjustment to the economic distress associated with resource declines.”  
Consideration of such programmes may provide a starting point for Members’ discussions of possible 
exceptions to a prohibition.  
8 TN/RL/W/166, paragraph 8. 
9 Id., paragraph 11. 
10 See the discussion of previous efforts to categorize fisheries subsidies in TN/RL/W/58.  TN/RL/W/169 
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 Exceptions Remain Actionable 
 
 In our view, exceptions to a prohibition should  still be actionable under other provisions of 
the SCM Agreement.  In that connection, Members might want to consider the possibility of 
clarifications of the “serious prejudice” provisions of  Article 6 (Serious Prejudice) to make them more 
operational in the specific cont ext of fisheries subsidies.11   
 
__________ 
  
                                                     
 
11 The current Article 6 provisions (see Agreement on Subsidies and Countervailing Measures 
Article 6.3-6.5) contemplate a demonstration of  adverse trade effects through comparisons of e.g., market shares 
or prices in a given market, generally an export market.  For reasons that have been detailed in previous 
submissions, it is particularly difficult to demonstrate these effects in the case of fisheries products, primarily because the distinctive trade distortions in the fisheries sector occur through limiting the productive access of 
non-subsidized fleets to exhaustible fisheries resources.  See TN/RL/W/3, paragraphs 9-11; TN/RL/W/12; 
TN/RL/W/115, paragraphs 4-7.