S&DT & EEZ Access Arrangements Marcos A. Orellana Director, Trade & Sustainable Development Program Center for International Environmental Law January 2008

Contents Research & Consensus Research & Consensus Legal Analysis: Findings Legal Analysis: Findings S&DT S&DT Chair’s Text Chair’s Text

Research & Consensus Government-to-Government Access Arrangement per se NOT a subsidy Government-to-Government Access Arrangement per se NOT a subsidy Rules should introduce effective transparency requirements regarding Access Arrangements Rules should introduce effective transparency requirements regarding Access Arrangements Rules should not impede access payments on which many vulnerable economies depend Rules should not impede access payments on which many vulnerable economies depend

Legal Analysis: Findings Legal Analysis: Findings Financial Contribution exists when a DWFN provides its fleet with access rights to fish in a foreign EEZ Financial Contribution exists when a DWFN provides its fleet with access rights to fish in a foreign EEZ Benefit is conferred where the DWFN fails to receive sufficient payment from its distant-water fishing fleet in exchange for the right to fish in a foreign EEZ Benefit is conferred where the DWFN fails to receive sufficient payment from its distant-water fishing fleet in exchange for the right to fish in a foreign EEZ Case-by-Case analysis required to determine presence of a subsidy in a particular case Case-by-Case analysis required to determine presence of a subsidy in a particular case

Special & Differential Treatment Exception to the Prohibition Exception to the Prohibition Economic Dimension: safeguard payments to SIDS and other developing economies Economic Dimension: safeguard payments to SIDS and other developing economies Sustainable Development Dimension: EEZ goals of food security & sustainable development Sustainable Development Dimension: EEZ goals of food security & sustainable development Conditions attaching to the Exception Conditions attaching to the Exception Environmental: Sustainability of stocks enhances food security and enables compliance with EEZ obligations Environmental: Sustainability of stocks enhances food security and enables compliance with EEZ obligations Transparency: Strengthens bargaining position of Coastal State Transparency: Strengthens bargaining position of Coastal State Transparency: Allows monitoring of biological status of the stocks Transparency: Allows monitoring of biological status of the stocks

Chair’s Text: Structural Pillars Definition & Prohibition Definition & Prohibition S&DT: Exception & Conditions S&DT: Exception & Conditions Conditions: Transparency and Sustainability Conditions: Transparency and Sustainability Remedies: Burden of Proof Remedies: Burden of Proof

Chair’s Text: Conditions Conditions: Transparency & Sustainability Conditions: Transparency & Sustainability Transparency : Agreement made Public; Notification of Terms of Agreement; Reporting Transparency : Agreement made Public; Notification of Terms of Agreement; Reporting Sustainability: Agreement reflect International Law on Fisheries & require and support Conservation Measures Sustainability: Agreement reflect International Law on Fisheries & require and support Conservation Measures Prior & Regular Science-based Stock Assessments Prior & Regular Science-based Stock Assessments Management & Control Measures (e.g., VMS) Management & Control Measures (e.g., VMS) Vessel Registry Vessel Registry Reporting of effort, catches and discards to national authorities and to relevant international organizations Reporting of effort, catches and discards to national authorities and to relevant international organizations Other Measures as may be appropriate Other Measures as may be appropriate

Chair’s Text: Conclusion Strengths: Balanced & Nuanced Strengths: Balanced & Nuanced Conditions: Require AND Support conservation measures Conditions: Require AND Support conservation measures Flexibilities: International Fisheries Instruments Flexibilities: International Fisheries Instruments Fishery Specific (in all likelihood) Fishery Specific (in all likelihood) Exception does not apply to High Seas Fisheries Exception does not apply to High Seas Fisheries Shortcomings Shortcomings International Stocks not considered explicitly, but only indirectly by reference to international legal instruments International Stocks not considered explicitly, but only indirectly by reference to international legal instruments Who is responsible for monitoring & ensuring compliance with the terms of access arrangements? And what are the consequences in cases of non-compliance with the terms of access arrangements? Who is responsible for monitoring & ensuring compliance with the terms of access arrangements? And what are the consequences in cases of non-compliance with the terms of access arrangements?