Fishing Subsidies & EEZ Access Arrangements Fishing Subsidies & EEZ Access Arrangements Marcos A. Orellana Director, Trade & Sustainable Development Program Center for International Environmental Law FINAL DRAFT 05 MAY 06

The EEZ: Origins and Challenges What was the purpose underlying the creations of EEZs? What was the purpose underlying the creations of EEZs? What is the EEZ’s legal framework? What is the EEZ’s legal framework? How is the EEZ’s raison d’ ê tre relevant for the Doha Negotiations? How is the EEZ’s raison d’ ê tre relevant for the Doha Negotiations? Developing Countries & Natural Resources Developing Countries & Natural Resources Customary Law, LOS Convention, 1995 Fish Stocks Agreement Customary Law, LOS Convention, 1995 Fish Stocks Agreement Development & Food Security Development & Food Security

Access Arrangements & Payments What is the legal framework for EEZ access arrangements & payments? What is the legal framework for EEZ access arrangements & payments? Is there a relevant distinction between Arrangements, Payments & Benefits? Is there a relevant distinction between Arrangements, Payments & Benefits? LOS Convention LOS Convention FAO Code on Responsible Fishing FAO Code on Responsible Fishing WTO Law: GATT & ASCM WTO Law: GATT & ASCM

Access Arrangements & Payments What are the problems with access arrangements & payments? What are the problems with access arrangements & payments? Distortions to trade & competition Distortions to trade & competition Undermine potential for coastal State development Undermine potential for coastal State development Exports capacity, Enables IUU Fishing Undermines sustainability Exports capacity, Enables IUU Fishing Undermines sustainability

WTO Law & Access Agreements Do access payments constitute subsidies under the ASCM? Do access payments constitute subsidies under the ASCM? Hypothesis 1: Access payments are not subsidies under the ASCM Hypothesis 1: Access payments are not subsidies under the ASCM Analysis: Analysis: 1. Government-to-government transfers not “within the territory” 1. Government-to-government transfers not “within the territory” 2. Not a “direct transfer of funds” from government to industry 2. Not a “direct transfer of funds” from government to industry 3. Access rights (licenses, permits) not a “provision of goods” 3. Access rights (licenses, permits) not a “provision of goods”

WTO Law & Access Agreements (cont) Do access payments constitute subsidies under the ASCM? Do access payments constitute subsidies under the ASCM? Hypothesis 2: Access payments are subsidies under the ASCM. Hypothesis 2: Access payments are subsidies under the ASCM. Analysis: Analysis: 1. payments originates “within the territory,” e.g. export credits 1. payments originates “within the territory,” e.g. export credits 2. payments are a “direct transfer of funds” that confer a benefit 2. payments are a “direct transfer of funds” that confer a benefit 3. access to fish constitute “provision of goods” under ASCM, in light of US-Softwood Lumber case (WT/DS257/AB/R). 3. access to fish constitute “provision of goods” under ASCM, in light of US-Softwood Lumber case (WT/DS257/AB/R).

Options for Improved Disciplines on Fishing Subsidies Is there a role for the WTO in addressing access payments? Is there a role for the WTO in addressing access payments? Maintain the status quo & explore dispute settlement Maintain the status quo & explore dispute settlement Improving Definition: Decoupling Arrangements, Payments & Benefits Improving Definition: Decoupling Arrangements, Payments & Benefits Improving Remedies: Use of Presumptions in Dispute Settlement Improving Remedies: Use of Presumptions in Dispute Settlement Lessons from Export Credits & the Arrangement Lessons from Export Credits & the Arrangement