WORLD TRADE  
ORGANIZATION  TN/RL/GEN/176 
1 March 2011 
 (11-1001) 
Negotiating Group on Rules Original:   English 
  
 
FISHERIES SUBSIDIES:  ARTICLES III AND V 
 
Communication from Kenya
 
on behalf of the ACP Group  
 
 
 The following communication, dated 25 February 2011, is being circulated at the request of 
the delegation of Kenya on behalf of the ACP Group.  
_______________ 
 
 
Introduction 
 
1. The following communication is submitted by the delegation of Kenya on behalf of the 
ACP Group.  It addresses Articles III and V of the fisheries subsidies Annex.  The ACP Group 
reserves the right to submit further communications on this issue.  In addition, this communication 
does not prejudice the position and views of the AC P Group on other articles of the current draft 
Annex. 
2. The ACP recalls that paragraph 9 of Annex D of the Hong Kong Ministerial Declaration 
emphasises that "Appropriate and effective special  and differential treatme nt for developing and 
least-developed Members should be an integral part of the fisheries subsidies negotiations, taking into 
account the importance of this sector to developmen t priorities, poverty reduction, and livelihood and 
food security concerns".  In this context, the ACP Gr oup has consistently insisted that the Chair's draft 
text, as it currently stands, does not effectively addr ess the development priorities and concerns of the 
Group. 
3. While the ACP Group is fully committed to disci plining fisheries subsidies that lead to 
overcapacity and overfishing, the Group reiterates that  its share of global marine wild capture fishing 
is minimal and that the Group is, therefore, not a cause of overcapacity and overfishing.  For the 
ACP Group, any agreement reached must provide a balanced, fair and equitable outcome that duly 
takes into account, inter alia : 
(i) its minimal share of catch; 
 
(ii) its development priorities; 
 
(iii) the vital importance of the fisheri es sector to the national, socio-economic 
development of the ACP Member States;  and 
 
(iv) the sufficient policy space that these ACP Members require to develop this sector in 
light of their resource and capacity constraints. 
 TN/RL/GEN/176 
Page 2  
 
  4. In view of the foregoing, a proposal is hereby being made to address the need for appropriate 
and effective S&DT for those developing countries which do not contribute to over capacity and over 
fishing, and to provide workable and effective soluti ons to allow ACP States to develop their fisheries 
sector, safeguard livelihood security and to pursue their national development strategies, including 
diversification of their economic base. 
Amendments to Article III 
 
5. The ACP Group has previously argued that referenc es to boat size are arbitrary, given that the 
length of a boat does not necessarily correlate to its capacity and effort.  The ACP Group therefore 
submits a different approach to Article III on S&DT.  This is premised on the ACP Group's 
constructive engagement to find appropriate solutions  for the Group using an objective criterion based 
on global marine wild capture fisheries.  It is also in response to calls by Members to establish a 
parameter that corresponds better to the objectives of the disciplines.  On the basis of this approach, 
the ACP Group proposes that subsidies outlined in 1.1(a) and 1.1(c) of the Annex shall not be 
prohibited for Members whose share of the global marine wild capture fisheries is less than 
0.60 per cent.  This threshold is reasonable as it a llows ACP States to maintain the viability of their 
fisheries sector. 
6. In relation to subsidies referred to in Artic le III.2(b)(3), a new sub-paragraph has been 
included to cater for access to shared migratory or  straddling stocks for Members with reciprocal 
access agreements. 
7. Article III.3(c) refers to the provision of techni cal assistance for implementation of fisheries 
management systems in the context of purchased access rights between Members. 
8. Articles III.4.1 to III.4.3, as set out in the te xtual proposal annexed to this communication, 
incorporate technical assistance language drawn from an earlier joint initiative with the SVE Group as 
contained in TN/RL/GEN/158 of 2008. 
Amendments to Article V 
 9. Fisheries management systems are important to the ACP Group.  The ACP Group reiterates 
its collective and individual commitment to the su stainable management of marine resources.  
However, the ACP Group is not a proponent of linking  special and differential treatment provisions to 
the implementation of fisheries management conditionalities.  For the ACP Group, appropriate and 
effective S&DT has always been a prerequisite for facilitating the participation of developing 
countries in the multilateral trading system, gi ven their inherent development challenges.  
Nonetheless, in a spirit of constructive engageme nt, the Group is willing to consider fisheries 
management systems which are confined to a core set of universal fisheries management elements that are cost-effective and easily enfor ceable in all developing countries. 
10. However, the ACP Group cannot agree to any peer review as a precondition to provide a 
subsidy. 
11. The ACP Group finds that the fisheries manageme nt systems as set out in the current Annex 
to be financially and administratively burdensome .  The Group is, therefore, proposing to streamline 
the management systems to ensure that they ar e easily implementable and within the capacities of 
resource-constrained developing countries.  TN/RL/GEN/176 
 Page 3 
 
 
  TEXTUAL PROPOSAL 
 
 
Article III  
 
Special and Differential Treatment of Developing Country Members  
 
… 
 III.2 For developing country Members other than LDC Members:
 
 
… 
 
(b) In addition, subject to the provisions of Article V1: 
 
  (1) Subsidies referred to in Articles I.1 (d), I.1 (e) and I.1 (f) shall not be 
prohibited.  
   (2)
 
 
   (i) Subsidies referred to in Article I.1(a) and I.1(c) shall not be prohibited 
provided that they are used excl usively for marine wild capture 
fishing employing decked vessels not greater than 10 meters or 
34 feet in length overall, or undecked vessels of any length.  
 
OR 
 
 (ii) Subsidies referred to in Article I.1 (a) and Article I.1(c) shall not 
be prohibited for those deve loping country Members whose 
percentage share of global marine  wild capture is not more than 
0.602 per cent.  
 
  (3) For fishing and service vessels of  such Members other than the vessels 
referred to in paragraph (b)(2), subsidies referred to in Article I.1(a) shall not 
be prohibited provided that the vessels are used exclus ively for marine wild 
capture fishing activities of such Members in respect of particular, 
identified target stocks within:  
 
   (i) their Exclusive Economic Zones ("EEZ");  
 
   (ii) the EEZ of another Member through reciprocal access 
agreements between two or more Members, including agreements 
for access to shared migratory or straddling stocks between 
neighbouring Members where those Members are all Members of 
and in compliance with the management measures of the relevant 
RFMO  
 
                                                      
1 The ACP Group reserves its position on the linkage to Article V until such time that there is 
agreement on the final scope and coverage of the fisheries management systems under this Article. 
2 Using 2006-2008 FAO data. TN/RL/GEN/176 
Page 4  
 
  (iii) stocks under (i) and (ii)  have been subject to prior scientific status 
assessment conducted in accordance with relevant international 
standards, aimed at ensuring that the resulting capacity does not 
exceed a sustainable level and (iii) that assessment has been subject to 
peer review in the relevant body of the United Nations Food and 
Agriculture Organization ("FAO") .3 
 
III.3 Subsidies referred to in Article I.1 (g) shall not be prohibited where the fishery in question is 
within the EEZ of a developing country Member provided that:  
 
(a) The subsidies are contingent upon an ag reement on access rights that is made 
public,  
(b) The agreement contains provisions desi gned to prevent overfishing in the 
designated area based on internationally -recognized best practices for fisheries 
management and conservation, duly ratified by the Member, and as reflected in  
the relevant provisions of international in struments aimed at ensuring the sustainable 
use and conservation of marine species, such as, inter alia , the Agreement for the 
Implementation of the Provisions of the United Nations Convention on the Law of the 
Sea of 10 December 1982 Relating to the Conservation and Management of 
Straddling Fish Stocks and Highly Migratory Fish Stocks ("Fish Stocks Agreement "), 
the Code of Conduct on Responsible Fisheries of the Food and Agriculture 
Organization ("Code of Conduct "), the Agreement to Promote Compliance with 
International Conservation and Management  Measures by Fishing Vessels on the 
High Seas ("Compliance Agreement "), and technical guidelines and plans of action 
(including criteria and precautionary reference points) for the implementation of these 
instruments, or other related or successor in struments.  These provisions shall include 
requirements and support for science-based  stock assessment before fishing is 
undertaken pursuant to the agreement a nd for regular assessments thereafter, for 
management and control measures, for vessel registries, for reporting of effort, 
catches and discards to the national authoriti es of the host Member and to relevant 
international organizations, and for such  other measures as may be appropriate.  
(c) The developed or developing country Member purchasing access rights for 
fishing in a developing country Members' EEZ shall provide specific technical or 
development cooperation for the effectiv e implementation of the management 
conditions mentioned in paragraph (b) above.  
III.4.1  "Members recognize that developing country Members, especially 
least-developed countries and small, vulnera ble economies, will face serious challenges in 
complying with the requirements of this Annex,  in particular as regards the conditions and 
criteria set forth in this Article and in Articles V ("Fisheries Management") and VI 
("Notifications and Surveillance").  
 
III.4.2 Members recognize that the ability of developing country Me mbers, especially 
least-developed countries and small, vulnerable economies, to adopt, implement and sustain 
measures necessary for complying with the requirements of this Annex may depend on the 
effective and timely provision of technical assistance by Members to developing country 
                                                      
3 If the Member in question is not a member of th e FAO, the peer review shall take place in another 
recognized and competent international organization .  TN/RL/GEN/176 
 Page 5 
 
 
  Members in accordance with their demands an d needs.  Members recognize that developing 
country Members will have different implementa tion needs and capacities and to this end, 
developing countries which indicate a need for te chnical assistance shall be provided with such 
assistance through bilateral processes, through ne w and/or existing WTO technical assistance 
and support mechanisms and through other mech anisms of relevant international and regional 
organisations.  
 
III.4.3 The Committee on Subsidies and Countervailing Measures shall establish a 
Sub-Committee dealing exclusively with issues related to technical assistance and support 
programs under this Annex, specifically as regar ds fisheries management systems and measures 
related thereto.  The Sub-Committee shall coordi nate the requests from developing country 
Members for technical assistance and support pr ograms and shall review the effectiveness of the 
technical assistance provided to developing country Members.4  The Sub-Committee shall 
periodically report its findings to the Commi ttee on Subsidies and Countervailing Measures and 
the Committee on Trade and Development."5 
 
Article V  
 
Fisheries Management6 
 
V.1 Any Member granting or maintaining any subsidy as referred to in Article II or 
Article III.2 (b) shall operate a fisheries management  system regulating marine wild capture fishing 
within its jurisdiction that is designed to prevent overfishing.  Such a management system shall be 
based on internationally– recognised best practices  for fisheries management and conservation as 
reflected in the relevant provisions of international instruments , duly ratified by the Member, aimed 
at ensuring the sustainable use and conser vation of marine species, such as the Fish Stock Agreement , 
the Code of Conduct  and the Compliance Agreement . 
 
V.2 The fisheries management system shall include:  
 
(i) regular science-based stock assessment;  
 
(ii) capacity management measures;  
 
(iii) effort control measures;  
 
(iv) appropriate monitoring, control and surveillance;  and  
 
(v) research and other measures related to conservation and stock maintenance and 
replenishment.  
 
                                                      
4 The Sub-Committee, in consultation with the de veloping Member concerned, shall identify any 
additional needs of that Member for technical assistance and every effort shall be made to ensure that 
appropriate technical assistan ce is provided to that Member.  The role of the Sub-Committee shall not be to 
determine the validity of a developing co untry's request for technical assistance. 
5 Future discussion would be required on the procedures to be followed if a developing country 
member does not receive the re quested technical assistance. 
6 Developing country Members shall be free to implement and operate these management requirements 
on a regional rather than a national basis provided that all of the requirements are fulfilled in respect of and by 
each Member in the region. TN/RL/GEN/176 
Page 6  
 
  V.3 The Member granting the subsidy shall adopt a nd implement pertinent dom estic legislation and 
administrative or judicial enforcement mechanisms.  It is desirable that such fisheries management 
systems be based on limited access privileges.7  Members shall notify information on the nature 
and operation of these systems, including the res ults of the stock assessments performed to the 
Committee on Subsidies and Countervailing Measures.  
 
V.4 Each Member shall maintain an enquiry point  to answer all reasonable enquiries from other 
Members and from interested parties in other  Members  concerning its fisheries management system, 
including measures in place to address fishing capacity  and fishing effort, and the biological status of 
the fisheries in question.  Each Member shall notify to the Committee contact information for this  
enquiry point.  
 
                                                      
7 Limited access privileges could include, as approp riate to a given fishery, community-based rights 
systems, spatial or territorial rights systems, or individual quota systems, including individual transferable 
quotas.   TN/RL/GEN/176 
 Page 7 
 
 
  Annex 
 
  The following ACP, non–LDC, WTO Members ha ve a global marine wild capture fisheries 
catch of less than 0.60 per cent. 
 
Beneficiary Country Share of global marine wild capture per cent 
 
Source:  FAO 
2006  2007  2008  Average 
2006-2008 
Antigua and Barbuda 0.00 0.00 0.00 0.00 
Barbados 0.00 0.00 0.00 0.00 
Belize 0.01 0.01 0.01 0.01 
Cameroon 0.08 0.08 0.08 0.08 
Cape Verde 0.03 0.02 0.03 0.03 
Congo Brazzaville 0.04 0.04 0.03 0.04 
Cote d'Ivoire 0.06 0.06 0.07 0.06 
Cuba 0.03 0.03 0.03 0.03 
Dominica 0.00 0.00 0.00 0.00 
Dominican Republic 0.01 0.02 0.02 0.02 
Fiji 0.06 0.05 0.06 0.06 
Gabon 0.04 0.04 0.03 0.04 
Ghana 0.37 0.31 0.35 0.34 
Grenada 0.00 0.00 0.00 0.00 
Guyana 0.07 0.06 0.05 0.06 
Jamaica 0.02 0.02 0.02 0.02 
Kenya 0.01 0.01 0.01 0.01 
Mauritius 0.01 0.01 0.01 0.01 
Namibia 0.63 0.51 0.47 0.54 
Nigeria 0.41 0.38 0.30 0.36 
Papua New Guinea 0.36 0.32 0.26 0.31 
St. Kitts & Nevis 0.00 0.00 0.00 0.00 
St. Lucia 0.00 0.00 0.00 0.00 
St. Vincent & Grenadines 0.01 0.01 0.00 0.01 
Suriname 0.04 0.04 0.03 0.04 
Tonga 0.00 0.00 0.00 0.00 
Trinidad & Tobago 0.02 0.02 0.02 0.02 
 
 
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