(Presentation by David Schorr)

1. (Presentation by David Schorr)

2. The issue is squarely on the table

3. Argentina(tn/rl/gen/138/rev.1) [Conditions for S&DT include:] X.2 fishing capacity “substantially lower” [50%] than TAC (TAC = quantitative science-based limits allowing MSY, per CoC) or use enforceable quantitative quotas under an RFMO or treaty and X.3 (a) vessels are licensed to fish and registered; (b) limited to qualifying species (per X.[2?]; and (c) “a national fisheries management system in line with the FAO Code of Conduct for Responsible Fisheries (1995)”

4. Brazil(tn/rl/gen/79/rev.3) [Conditions for S&DT include:] 4.2 Certain subsidies not allowed to “fisheries patently at risk” (i.e., “overexploited”, “depleted”, or “recovering” per FAO) 4.3 Vessels are licensed to fish and registered 5.2 Notifications should include information about stock and management conditions

5. European Communities(tn/rl/gen/134) Developing Country Members • Except where provided otherwise, the provisions of this Annex do not apply to a developing country Member for as long as such Member does not, as from the entry into force of this Annex, increase its fishing capacity, to an extent that it is an impediment to the sustainable exploitation of fishery resources worldwide. 2. Any Member can refer the matter whether such an impediment is taking place or is imminent, as the case may be, to the Permanent Group of Experts established under Article 24.3 of the SCM Agreement

6. Japan et al(tn/rl/gen/114/rev.1) Unless all of the following conditions are satisfied, subsidies for vessel construction or modification shall be prohibited. • A system where a government of a Member controls the number of fishing licenses is in place and under such system: - each fishing vessel obtains a license from the government, and - each fishing vessel to be constructed or modified possesses a valid fishing license or is confirmed to obtain license after the construction or modification.

7. Norway(tn/rl/gen/144) 3. A developing country Member may nevertheless grant such subsidies as are listed in paragraph 1.1 to fishing vessels with an overall length of 28 metres or less, for the purpose of exploiting underutilised fish stocks within its area of fisheries jurisdiction, provided that any build-up of fishing capacity is consistent with a comprehensive resource management plan based on scientific advice for the sustainable management and exploitation of such fish stocks. The management and exploitation plan shall have been approved by an internationally recognised competent management or scientific body and the approved plan shall be notified in accordance with paragraphs 5, 6 and 7 of this Annex.

8. United States(tn/rl/gen/127) (language also adopted by NZ) Subsidies for capacity reduction are subject to specific requirements of programme design, and “(4) there are in place fisheries management control measures designed to prevent over-fishing in the targeted fishery, such as limited entry systems, catch quotas, limits on fishing effort or allocation of exclusive quotas to vessels, individuals and/or groups.”

9. Conclusion: Unless the ban is very broad, context-related conditionality seems hard to avoid

10. Broad Approaches vs. Specific Criteria

11. Broad Approaches “simple reference to international norms” “basic restatement of norms”

12. Broad Approaches = “leave it to the panels” (narrower issues / case-by-case)

13. APROACHING SPECIFIC CRITERIA

14. Meta-Criteria: Choosing Good Indicators Predictive Power – strong predictors of relevant positive or negative conditions; Acceptability – based on broadly accepted principles / international norms; Plausibility – require behavior that is plausible for all stakeholders; Consistency – roughly consistent with each other; and Institutional Appropriateness – appropriate to the WTO institutional context

15. Limited Ambitions The “good” news: meta-criteria → least common denominator The bad news: criteria aren’t enough (other disciplines needed) (don’t panic!!)

16. Two Levels of Complexity “Basic Bright Lines” = WTO appropriate per se “Interdisciplinary Criteria” = need consultation

17. The WFO??

18. Welcome to the WDO? [from the WTO Dairy Agreement] Skimmed milk powder may be exported from the customs territory of Australia to third countries . . . after the competent Australian authorities have ensured that the skimmed milk powder has been denatured according to any one of the following processes: • By the addition, per 100 kgs. of skimmed milk powder, of 2.5 kgs. of lucerne meal or grass meal, containing not less than 70 per cent of particles not exceeding 300 microns, uniformly distributed throughout the mixture. 2. By the addition of finely milled alfalfa flour (98 per cent to pass mesh 60, equivalent to 50 United States standard), in a proportion of 2 to 4 parts per 100 and of phenolphthalein in a proportion of 1:20,000 (1 gr. per 20 kgs. of milk). 3. By the addition, in the proportion of 20 per 100 by weight of the product treated (80 per 100 by weight of milk powder and 20 per cent of the denaturing agent) of a mixture composed of 80 per cent bran and 20 per cent potato flour, rice flour or other common starch (at least 10 per cent to pass mesh 60, equivalent to 50 United States standard), with phenolphthaleinin the proportion of 1:20,000.

19. Or is it the WBO?[from Beef Hormone (US v EC) Panel Report] “To determine whether the EC measures in dispute with respect to zeranol and trenbolone are based on these Codex standards, we need to examine whether the level of protection reflected in the EC measures is the same as the level of protection expressed by the Codex standards.” . . . We next consider whether the scientific evidence and attendant evaluation referred to by the European Communities constitutes a risk assessment in the sense of Article 5. We recall that under the SPS Agreement a risk assessment should, for the purposes of this dispute, identify the adverse effects on human health arising from the presence of the specific hormones at issue when used as growth promoters in meat or meat products and, if any such adverse effects exist, evaluate the potential or probability of occurrence of these effects. We further recall that a risk assessment should be a scientific examination of data and studies and that the SPS Agreement sets out factors which need to be taken into account in a risk assessment. We finally recall that no risk assessment techniques, as referred to in Article 5.1, have as yet been formally adopted by Codex. The Agreement does not further specify the requirements of what constitutes a risk assessment in accordance with Article 5. (now you can panic)

20. OPTIONS FOR SPECIFIC CRITERIA

26. One More Very Bright Line: International Stock = International Management

27. Certified as Simple! “No unpronounceable polysyllabic compound words with obscure Greek etymology were used in the formulation of these criteria”

28. Artisanal Fisheries Narrowly defined “impoverished, diffuse, rural, low-tech, and largely governed by social tradition” Not per standard criteria . . .but no carte blanche → adaptation + phase-in (rapid rural assessments, e.g.)

29. Institutional Mechanisms Not strictly necessary, but perhaps very helpful (substantively & politically) A range of options: 1. Just use experts; 2. A standing body wholly under the auspices of the WTO; 3. A soft or hard obligation to consult with relevant IGOs; 4. MoU’s with relevant IGOs; 5. A standing body in cooperation with relevant IGOs (cf. FAO-CITES) + “rules of deference”??

30. Main Conclusions Emphasize infrastructure for MCS? (includes regulation; no open access) Require the most basic quantitative assessments of capacity and fleets? Consider more ambitious and subtler approaches (“interdisciplinary”)? [Return to “bottom-down” / “patently at risk” approach?] New institutional mechanisms? Deference rules?

31. Merci de votre attention!