How can the rule of law under the WTO framework ensure sustainable fishery governance through fishery subsidies? A study from the perspective of special and differential treatment

Abstract

Background: Considering the declining situation of sustainability in global marine fisheries, World Trade Organization (WTO) members successfully concluded the Agreement on Fisheries Subsidies(AFS) after 21 years of negotiations in 2022. As an the integral part of these negotiations, special and differential treatment (SDT) provisions provide developing countries with special rights and developed countries with the possibility to treat developing countries more favorably than other WTO members.

Objective: This study analyzed the role of SDT for fisheries subsidies in ensuring sustainable fishery governance by the rule of law, as well as the reflection of SDT under the AFS, to explore whether SDT can support sustainable fishery governance under the WTO framework.

Methods: This study is primarily based on official data and critical legal studies and used normative analysis and historical analysis to expose the essence of the SDT issue in the AFS as a political game in the legal form.

Results: The practical challenges in the implementation of SDT may affect the compliance willingness of member states. To overcome the obstacles, such as ambiguity and inefficiency, that impede the legalization process of sustainable global marine fishery governance, it is necessary to emphasize the value of SDT for the common interests of the WTO members in marine fisheries legislation. This will benefit the developing countries, especially the small island developing states, in the short term; and the common interests of developed and developing countries in the long term.

Policy implications: SDT facilitated the consensus between the developing and developed countries on issues such as illegal, unreported, and unregulated fishing subsidies and overfishing subsidies. However, current SDT practices have deviated from the original intention of the fairness and democratic approach of global marine fisheries governance, which should take into consideration the specific situation of developing countries.

Keywords: Agreement on fisheries subsidies; Overfishing; Rule of law; Special and differential treatment; Sustainable fishery governance; World trade organization.