WTO's Role in Illegal, Unreported, and Unregulated Fishing Determinations: Standard of Review Under the Agreement on Fisheries Subsidies

This paper explores regime interaction and partnership within the newly established Agreement on Fisheries Subsidies (AFS) of the World Trade Organization (WTO). It examines the procedural implications of regime interaction and partnership in the dispute settlement mechanism, particularly when identifying prohibited fisheries subsidies. The paper underscores the critical role of determinations made by fisheries management regimes in the context of the AFS, effectively fostering a unique partnership between the WTO and fisheries management regimes in pursuit of ocean sustainability.
The paper first examines how the WTO relies on the determinations of fisheries management regimes in adjudicating on prohibited subsidies related to illegal, unreported, and unregulated fishing (IUU fishing), subsidies regarding overfished stocks, and subsidies to fisheries outside of the jurisdiction of a coastal member or non-member and outside the competence of a relevant RFMO/A, but with a focus on IUU fishing. Following this, it explores the optimal degree of this regime interaction based on the realization of AFS' sustainability goals and the concerns caused by the adoption of regime interaction. It argues for a partnership relationship between WTO and fisheries management regimes by adopting a deferential standard of review by the WTO panel in recognition of the expertise of fisheries management regimes. However, it also raises concerns about due process, suggesting that total deference may not adequately address these issues. The paper further argues that the current role of the WTO in IUU fishing determinations can be problematic in certain situations. The paper therefore calls for a more engaging role of the WTO in the IUU fishing determinations.
The paper concludes with the observation that this new form of regime interaction in the AFS could have significant implications for the future of multilateral trading systems, particularly in furthering environmental objectives. It posits that the regime partnership demonstrated in the AFS could serve as a model for future WTO agreements, taking into account the caveat discussed above.