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WTO DISCIPLINES ON FISHERIES SUBSIDIES: A HISTORIC STEP TOWARDS SUSTAINABILITY?
1 Professor of Law, Seoul National University
The Doha Ministerial Declaration mandates the WTO Negotiating Group on Rules to ‘clarify and improve WTO Disciplines on fisheries subsidies’. Under this mandate, the so-called ‘Friends of Fish’ currently propose to adopt special sectoral disciplines on fisheries subsidies that directly and primarily aim at preserving fish resources. This paper examines whether and to what extent proposals by Friends of Fish can be justified, as a matter of law and policy. This paper first demonstrates that: (i) the current SCM Agreement may resolve fisheries subsidies issues to a considerable extent through dispute settlement; (ii) some limits of the SCM Agreement originate mostly from the generic imperfectness of the current SCM rules that apply equally to other sectors, rather than from unique features of the fisheries sector. Therefore, WTO Members may preferably move forwards negotiating on special disciplines only for residual matters that dispute settlement or cross-sectoral negotiations on SCM rules cannot effectively address. The Doha mandate cannot be construed as legally authorizing WTO Members to adopt special disciplines on fisheries subsidies as proposed by Friends of Fish, which would be a significant step beyond the trade-oriented WTO mission. As a matter of policy, such a move by the WTO towards sustainability would be an historic step for the WTO, but it would be justified only when proposed disciplines are accompanied by appropriate means to avoid or at least minimize an institutional systemic risk for the WTO. Current proposals by Friends of Fish seem to lack such a safety net. This paper concludes with several recommendations for WTO Members in dealing with fisheries subsidies issues so as to maintain a systemic balance and minimize an institutional risk for the WTO as a multilateral trading system.