Reflections on the WTO Negotiations on Prohibiting IUU Fishing Subsidies

This policy brief discusses some of the legal issues that have emerged in the negotiation of a new rule on subsidies to illegal, unreported and unregulated fishing in the context of the World Trade Organization negotiations on fisheries subsidies. 

By Isabelle Van Damme on February 10, 2020

Key Messages

  • Negotiations at the World Trade Organization on fisheries subsidies include an important rule designed to eliminate the subsidies provided to illegal, unreported and unregulated fishing.  
  • This rule could usefully build on existing definitions and obligations that governments have adopted under the international law of the sea. It could also flexibly reflect the variations in how governments control fisheries without introducing so much deference that the subsidy obligation becomes difficult to enforce. 

This policy brief explores some of the legal questions that have emerged in the negotiations at the World Trade Organization (WTO) about a new rule that would prohibit subsidies from being provided to fishers that have engaged in illegal, unreported and unregulated (IUU) fishing. The brief discusses how IUU fishing could be defined in the context of a WTO agreement with reference to the Food and Agriculture Organization of the UN's International Plan of Action on IUU fishing and explores the flexibility inherent in the plan. 

The brief examines the various options for who might make a determination of IUU fishing and under what due process conditions. This is a crucial step in the construction of a WTO rule because an IUU determination would trigger a WTO member's obligation to stop subsidizing. It argues that a broad approach that allows governments to make determinations in whatever capacity is relevant in a particular circumstance (e.g., in their capacity as coastal or flag states) would help to ensure that the discipline is effective. It also argues that due process conditions should be drafted to apply to the process by which determinations are made to ensure fairness vis-à-vis other members but should not apply to a government's choice of what circumstances warrant a determination. The brief also reviews options that would limit the application of the prohibition and suggests that clarity regarding the duration of the subsidy prohibition might be helpful.