Fishing for answers: illegal fishing, depleted stocks, and the need for wto fishing disciplines

• Author: Stephen Floyd
• Position: Georgetown University Law Center, J.D./LL.M. in National Security Law, 2022
• Pages: 797-834

NOTES

FISHING FOR ANSWERS: ILLEGAL FISHING,

DEPLETED STOCKS, AND THE NEED FOR WTO

FISHING DISCIPLINES

STEPHEN FLOYD*

ABSTRACT

There are no longer plenty of fish in the sea. One-third of global fish stocks

are overfished beyond biologically sustainable levels, and fishing subsidies are

the primary culprit. Such subsidies incentivize overfishing, foster illegal, unre-

ported, and unregulated (IUU) fishing, and dangerously reduce global stocks.

Moreover, diminished fishing stocks heighten food insecurity for vulnerable pop-

ulations, engender economic instability, and increase the potential for interstate

conflict. Indeed, fishing subsidies spawn challenges far larger than trade alone.

They present an international problem, and only a multilateral solution will

suffice.

Several international agreements have sought to address IUU fishing, and

these efforts have helped to crystallize norms. But many are voluntary, non-

binding agreements, and they lack the comprehensive scope and enforcement

mechanisms an effective solution requires. The World Trade Organization

(WTO) provides the ideal forum to address the root cause of IUU fishing head

on, and member states reinvigorated negotiations to establish disciplines on

fishing subsidies in 2015. Although negotiators failed to reach an agreement

before a 2020 deadline and face significant hurdles, they reconvened in

Geneva this February. The Chair of the WTO Negotiating Group released a

new draft consolidated text in May, and observers remain cautiously optimistic

about meetings the WTO Director convened in July. An agreement represents

the best opportunity for the international community to reduce IUU fishing and

restore global fish stocks. To prove effective, it must meet three criteria: 1) nar-

rowly limit the application of special and differential treatment (SDT) for

* Georgetown University Law Center, J.D./LL.M. in National Security Law, 2022. V

C2021,

Stephen Floyd. Many thanks to the Georgetown Journal of International Law staff for their editorial

support. I am especially indebted to Professor Timothy Brightbill for guidance on early drafts of

this Note, the faculty advisors and fellows of the 2021 Salzburg Cutler Fellows Program for their

insightful feedback, and Georgetown’s Institute of International Economic Law for selecting this

Note for publication. Above all, I am grateful for the encouragement of my wife, Erin, and her

unsinkable appreciation for fishy puns. The views expressed in this Note are the author’s own and

do not reflect the views of the Department of Defense, the U.S. Navy, or any other private or

public entity.

797

developing states; 2) establish objective mechanisms for stock assessments and

IUU fishing designations; and 3) set a narrow scope for dispute panels to

review decisions. Ultimately, if WTO member states fail to reach consensus, sub-

sidies will continue to deplete global fish stocks, diminish confidence in the mul-

tilateral system, and increase the potential for maritime conflict.

I. INTRODUCTION .................................... 799

II. THE WIDE WAKE OF FISHING SUBSIDIES ................... 800

III. SLIPPERY FISH:INTERNATIONAL FORA &THE GLOBAL DISCOURSE

ON FISHING SUBSIDIES ............................... 808

IV. CHASING THE WHITE WHALE:DOMESTIC REGULATIONS UNDER THE

WTO FRAMEWORK ................................. 813

A. WTO Constraints on Domestic Efforts to Regulate IUU

Fishing ...................................... 814

1. Tuna-Dolphin I: Process, Production Method, and

the Narrow Meaning of Necessity ............. 815

2. The U.S.-Shrimp Dispute: Trapped Turtles and

Article XX Shell Games ..................... 817

3. The Ten-Year Tuna-Labelling Dispute and Its Final

Resolution: Fluke or Flip? ................... 820

B. Impact and Efficacy: Can Member States Deter IUU Fishing

and Unsustainable Practices through WTO-Compliant

Regulations? .................................. 823

V. CASTING INTO THE WIND:CURRENT WTO NEGOTIATIONS &

RECOMMENDATIONS ................................. 825

A. Areas of Consensus ............................. 826

B. The Authority and Scope of IUU Fishing Designations ..... 828

C. Stock Assessments and Overfished Designations .......... 830

D. Standards of Evidence, Dispute Settlement, and the Basis for

Review ...................................... 831

E. Special and Differential Treatment................... 832

VI. CONCLUSION...................................... 834

GEORGETOWN JOURNAL OF INTERNATIONAL LAW

798 [Vol. 52

I. INTRODUCTION

No longer are there plenty of fish in the sea. The Food and

Agriculture Organization (FAO) of the United Nations has found that

one third of global fish stocks are overfished and not within biologically

sustainable levels.

1

Global tuna and mackerel populations declined by

sixty percent between 1954 and 2006.

2

In the South China Sea, coastal

fisheries have lost seventy to ninety-five percent of their stocks since the

mid-twentieth century.

3

On the high seas, indiscriminate bottom trawl-

ing destroys 95% of sea mount coral with each pass.

4

Fishing subsidies

are the primary culprit behind these trends. To secure food supplies

and protect a culturally significant industry, governments lavish large

subsidies upon domestic fishing fleets. Such subsidies not only distort

international trade but incentivize overfishing, foster illegal, unre-

ported, and unregulated fishing(IUU) in distant seas, and dangerously

reduce stocks. These policies compel local fishermen to fish further

from shore at great personal risk, engender food insecurity, and create

economic instability and the potential for conflict.

5

Fishing subsidies

pose a challenge far larger than trade alone.

Producing social, economic, and environmental effects across bor-

ders and in disparate regions, fishing subsidies present an international

problem, and only a multilateral solution will suffice. This Note consid-

ers how the international community can craft an effective agreement

to eliminate harmful fishing subsidies, reduce IUU fishing, and hold

violators accountable. In Part II, this Note will provide a general back-

ground on fishing subsidies and identify the myriad ways they distort

1. The State of World Fisheries and Aquaculture: Sustainability in Action,FOOD AND AGRICULTURE

ORGANIZATION OF THE UNITED NATIONS 47 (2020), http://www.fao.org/documents/card/en/c/

ca9229en.

2. Maria Jose Juan-Jorda, Iago Mosqueira, Andrew B. Cooper, Juan Freire & Nicholas K. Dulvy ,

Global Population Trajectories of Tunas and Their Relatives, 108 PROCEEDINGS OF THE NATIONAL

ACADEMY OF SCIENCES OF THE UNITED STATES OF AMERICA 20650, 20650 (2011), https://www.pnas.

org/content/108/51/20650.short.

3. Trawling for Trouble: Why Do Chinese Fishermen Keep Getting Arrested?,THE ECONOMIST (Apr. 14,

2016), https://www.economist.com/asia/2016/04/14/trawling-for-trouble (noting that coastal

fisheries in the South China Sea have lost 70-95% of their stocks since the 1950s).

4. Charles R. Taylor, Fishing with A Bulldozer: Options for Unilateral Action by the United States Under

Domestic and International Law to Halt Destructive Bottom Trawling Practices on the High Seas,34

ENVIRONS ENV’T.L.&POL’YJ.121, 167 (2010).

5. See, e.g.,TRISTAN IRSCHLINGER,INT’LINST.FOR SUSTAINABLE DEV., DEEP DIVE INTO FISHERIES

SUBSIDIES,PART 1: SENEGAL AND THE SUFFERING SARDINELLA (2019), https://www.iisd.org/

articles/deep-dive-fisheries-subsidies-part-1-senegal (“A Senegalese fisher once said to me: ‘I risk

my life for fewer and fewer fish every day.’”); Felonius Fishing: The Outlaw Sea,THE ECONOMIST, Oct.

24, 2020, at 58–60.

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