WORLD TRADE  
ORGANIZATION  TN/RL/GEN/151/Rev.1 
26 November 2007 
 (07-5193) 
Negotiating Group on Rules Original:   English 
  
 
FISHERIES SUBSIDIES: 
SPECIAL AND DIFFERENTIAL TREATMENT AND  
FISHERY ADVERSE EFFECTS 
 
Paper from Argentina and Brazil  
 
Revision  
  The following communication, dated 22 November 2007, is being circulated at the request of 
the Delegations of Argentina and Brazil. 
 
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1. The present revised proposal by Argentina and Brazil attempts to take into account the 
comments and suggestions made at the Negotiati ng Group on Rules (NGR) meetings, particularly 
concerning special and differential treatment (S&D ) and "fishery adverse effects" provisions. 
2. This proposed legal text should be understood as part of a general framework of disciplines 
based on the principle of a broad prohibition w ith specific exceptions, as well as substantive S&D 
treatment and strong conditionalities.  Argentina and Brazil would like to remark that only a strict 
approach to fisheries subsidies could be effective to  trade and environment.  In this sense, the Doha 
Round should contribute to a generalized improvement  of market access for fishing products as well 
as to the conservation of marine resources. 
3. The joint text reflects Argentina's and Brazil's commitment to ensure that S&D treatment (as 
well as the general exceptions) does not contribute to  over-fishing and overcapacity.  This document 
deals solely with S&D and "fisheries adverse eff ects".  It seeks to provid e a dynamic condition in 
order to address both the so-called "boat problem" and "fish problem". 
4. In order to guarantee that the future fisheries provisions function effectively, it is important to 
stress that provisions related to notification mechanisms, "remedies" and other supplementary 
disciplines are also necessary, as recognized by sev eral previous proposals circulated at the NGR. 
5. This revised document is intended to elaborat e on concepts and ideas presented in previous 
proposals without diminishing the level of ambition.  On the contrary, some additional criteria have been developed or refined in order to allow a highe r level of security.  In this regard, Argentina and 
Brazil consider that the use of qualitative elemen ts, such as "reasonably lower" fishing capacity, 
"moderate exploitation", or "sustain able allowable catch", may be useful to indicate the intended safe 
margins for S&D programmes. 
6. Concerning fishing activities related to live lihood and subsistence,  Argentina and Brazil 
consider that the proposed approach is workab le.  Notwithstanding, they are open to further 
discussion on this subject. TN/RL/GEN/151/Rev.1 
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  7. Argentina and Brazil understand that the propo sed S&D treatment, along with the exceptions 
provision, should be subject to certa in conditions of actionability.  As  drafted the "fisheries adverse 
effects" provisions would function similarly to the rebuttable presumption clause under now elapsed Art. 6.1 of the ASCM.  In the case of a claim unde r the WTO dispute settlement system, the burden of 
proof would revert to the a lleged  subsidiser country. 
8. This legal draft is a work in progress and does not constitute Members' final position on the 
subject. 
  TN/RL/GEN/151/Rev.1 
 Page 3 
 
 
  Article X 
Special and Differential Treatment 
X.1 Notwithstanding Article Y [prohibition] and subj ect to the conditions set forth in this Article, 
developing country Members shall be allowed to maintain or grant the following fisheries 
subsidies: 
(a) for fishing vessel construction, acquisiti on, repair, modification or modernization, 
including gear acquisition or improvement; or 
(b) to support the operation of fishing fleets (such as supply of fuel, bait or ice);  or 
(c) to fishing activities related to the subs istence and livelihood of the fishermen and 
their families.1 
X.2 The subsidies referred to X.1 (a) and (b) a bove may be only maintained or granted when the 
Member specifically determines that its domestic fishing capacity2 is reasonably lower than 
necessary to harvest a sustainable allowable catch3 of: 
(a) non-overexploited stocks4 located exclusively in th e Member's maritime areas;5 or 
(b) fishing quotas6 or any other rights7 agreed within the framework of a regional 
fisheries management organization or a rrangement, which operates under a fisheries 
management system that is based on releva nt international stan dards and practices, 
provided that the Member is a coastal State in the managed region. 
                                                      
 1 Those activities are performed exclusively within the Territorial Sea, with non-automatic gear-
retriever devices, provided that (a) the activities are ca rried out by fishermen, on an individual basis or 
organized in associations, including, but not necessari ly, the family members; (b ) the basic scope of the 
activities encompasses both family livelihood and a small profit trade; and (c) there is no major employer-employee relationship on the activities carried out. 
 
2 "Domestic fishing capacity" means the capacity of fishing vessels flagged by a Member, owned by 
companies constituted under the domestic law of that Memb er, and operated by crews the members of which are 
in the majority nationals of that Member. 
 3 "Sustainable allowable catch" means a total allo wable catch below levels which are capable of 
producing a long term maximum sustainable yield, based on the best scientific evidence available.  
4 "Overexploited stocks" shall mean all fish stocks except those target stocks that are being exploited 
below levels which are capable of producing a long term maximum sustainable yield (including the ones with no 
or almost no fishing activities), based on the best scientific evidence available.  
5 "Maritime areas" encompasses the Territorial Sea, the Exclusive Economic Zone and the Continental 
Shelf, as defined in the United Nations Convention of the Law of the Sea (UNCLOS). 
 6 The term "quotas" means enforceable quantitative li mits, established through scientific assessment, 
applicable on fish volum es for specified period. 
 7 The term "any other rights" means the Member’s rights to fish stocks (including those with no or 
almost no fishing activities), that are being exploited be low levels which are capable of producing a long term 
maximum sustainable yield and for which no specific quota has been established but are within constant 
monitoring by the relevant regional fisheries organizations or arrangements. TN/RL/GEN/151/Rev.1 
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  X.3 A Member that grants or maintains subsid y programmes pursuant to X.1 (a) or (b) shall 
ensure that, even if fully u tilized, the resulting fishing capacity
8 is below than necessary to 
harvest a sustainable allowable catch of the exploited stock and results in no more than 
moderate exploitation so that limited potentia l for further non-subsidized expansion of 
production remains. 
X.4 The fisheries subsidies referred to in paragra ph X.1 (a) or (b) shall be subject to compliance 
with the provisions on notification and transparency in Article XXX.9 
  
Article XX 
Fishery Adverse Effects 
XX.1 No Member should cause, through the use of any fishery subsidy referred to in Article Z 
[exceptions] and Article X.1 (a) a nd (b), fishery adverse effects. 
XX.2 For the purpose of this Annex, a fishery a dverse effect shall be deemed to exist if: 
(a) the Member does not have an effective national fisheries management system
10 in 
place; or 
(b) the subsidy targets overexploited stocks. 
  
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 8 "Resulting fishing capacity" means the total capacity authorized by the Member for the fishing of a 
stocks or group of stocks in its maritime areas, namely the domestic fishing capacity plus the capacity of other 
vessels authorized by the Member to fish in its maritime areas. 
 9 Additional flexibilities should be provided for in the case of subsidies granted by least developed 
countries, such as longer implementation periods under "Transitional Provisions".  Provisions should also be 
made for technical assistance to developing countries that need it in order to comply with the provisions on 
notification.  
10 National fisheries management system may include, inter alia , conservation and management 
measures based on the best scientif ic evidence available; fisheries mana gement control measures; mechanisms 
established to identify and quantify fishing capacity; vessel registration and licensing system; limited entry 
systems, catch quotas, limits on fishing effort or allocation of exclusive quotas to vessels; and timely and 
reliable statistics available on catch and fishing effort in sufficient detail to allow sound statistical analysis. 
Where relevant international standards and practices exis t, such as the FAO Code of Conduct for Responsible 
Fisheries of 1995, Members shall use them, or the relevant parts of them, as a basis for their national fisheries 
management systems.