Fisheries Subsidies under the Trans-Pacific Partnership: Towards Positive Outcomes for Global Fisheries Sustainability and Regime Interaction under International Law

The much-anticipated Environment Chapter of the recently concluded Trans-Pacific Partnership ('TPP) includes provisions prohibiting members from granting certain subsidies to their fisheries industries and calls for the implementation of effective fisheries management systems. These provisions represent a significant step for fisheries sustainability, and come at a time when the world's oceans are facing serious challenges from overfishing and the over-exploitation of marine resources. Whilst the link between overfishing and some types of subsidies is firmly established, competing economic, political and developmental interests have hindered efforts by members of the World Trade Organization to agree upon effective disciplines in this area, despite numerous draft proposals. Members of the TPP appear to have drawn upon some of these proposals in formulating their own fisheries subsidies disciplines, overcoming, in some respects, the further challenge of 'regime interaction' by incorporating the standards and concepts of fisheries management established by the United Nations Convention on the Law of the Sea and the Food and Agriculture Organization of the United Nations. In its analysis of the TPP's fisheries subsidies provisions, this article demonstrates that whilst there is certainly scope for improvement and firmer disciplines in this area, the current provisions provide a strong base from which to move forward towards the eventual elimination of all forms of fisheries subsidies that contribute to overfishing. CONTENTS I Introduction II Fisheries Subsidies A Background B Types of Subsidies III Overview of International Fisheries 'Regimes' A UNCLOS and the United Nations Fish Stocks Agreement B The FAO IV Disciplining Fisheries Subsidies at the WTO A The SCM Agreement B The WTO and Fisheries Subsidies Reform V The Challenges of Regime Interaction for Fisheries Reform VI The TPP: A New Approach to Disciplining Fisheries Subsidies? A Prohibited Subsidies 1 Reference to the SCM Agreement 2 Reference to Fish in an 'Overfished Condition' 3 Reference to 'IUU Fishing' and the Role of RFMOs 4 Social and Developmental Priorities B Fisheries Management Systems C Notifications D Enforcement 1 Dispute Resolution 2 Public Submissions 3 Independence and Autonomy E Investor-State Dispute Settlement F Evaluating the Success of the TPP's Fisheries Subsidies Provisions VII Conclusion I INTRODUCTION Overfishing represents one of the most significant challenges facing the world's oceans and marine ecosystems today. With almost 90 per cent of fish stocks estimated to be over-exploited or fully exploited, (1) the issue is one which is having dramatic consequences at many levels, including on ecology, global food security and economic prosperity, particularly in developing countries. The link between overfishing and certain types of fisheries subsidies has long been recognised and has recently become the subject of increased international attention. Perverse economic incentives create a situation in which governments are providing huge subsidies to maintain fishing industries which would otherwise be unable to operate, distorting global trade and leading to overfishing and unsustainable fishing practices. (2) The most recent study on this issue estimates global fisheries subsidies in 2009 were USD35 billion, with Japan and China providing the highest amount among developed countries. (3) Recognising the need for significant subsidies reform, it was against this background in 2001 that members of the World Trade Organization ('WTO') agreed to negotiate to 'clarify and improve WTO disciplines on fisheries subsidies, taking into account the importance of this sector to developing countries'. (4) Although there have been many meetings and proposals since then--including the most recent ministerial conference in Nairobi in December 2015--and despite the strong consensus among member states as to the nature and extent of the problem and the urgency of a solution, no firm disciplines on fisheries have been agreed. …