WTO渔业补贴谈判的IUU捕捞补贴禁令研究

2018年重启的WTO渔业补贴协定谈判尚在进行中,其中禁止对IUU捕捞的补贴得到WTO成员的广泛认同,但在IUU捕捞的认定、补贴禁令的执行以及如何处理领土和海洋管辖权争议问题、发展中国家的特殊和差别待遇等方面尚存在分歧。本文对IUU捕捞补贴禁令的有关重要事项进行了分析,建议在未来的协定中明确引用FAO《打击IUU捕捞国际行动计划》的定义;沿海国、船旗国、RFMO/A、港口国、补贴国按国际法可对IUU捕捞进行认定,但在认定方与补贴国不一致时应设定一个由补贴国的确认或核实的程序;补贴禁令的实施应按照“补贴谁、取消谁”的原则实施,并在程度上考虑IUU捕捞的严重性,且应规定不当IUU捕捞认定触发的补贴禁令对船舶造成损害的救济问题;领土和海洋管辖权争议应当完全排除在WTO渔业补贴协定之外;对未报告、无管制渔业的补贴禁令应当对发展中国家领海以内水域非大型工业渔业予以免除。此外建议我国应坚定维护我国的发展中国家地位,进一步加强取消从事IUU捕捞活动的补贴,尽快修改《渔业法》完善打击IUU捕捞条款,并尽早加入《港口国措施协定》。

Study on prohibition on subsidies to IUU fishing in WTO fisheries subsidies negotiation

The WTO fishery subsidies negotiations restarted in 2018 are underway, in which the prohibition on subsidies to IUU fishing are widely agreed by WTO members. However, there are still divergences in matters such as the determination of IUU fishing, the implementation of the prohibition, how to deal with territorial and maritime jurisdiction disputes, and special and differential treatment for developing countries. This paper analyzes the important matters related to the prohibition on subsidies to IUU fishing, and suggests that the definition in FAO International Action Plan against IUU Fishing should be explicitly quoted in the future agreement; coastal Members, flag States Members, RFMO/A, port States Members and subsidizing Members can make determination of IUU fishing according to international law, but when the determining Member is not the subsidizing Member, a procedure for IUU fishing determination confirmation or verification by subsidizing Member should be set up. Applying such prohibition should follow the principle of "who be subsidized and who be canceled and the seriousness of IUU fishing should be considered, and the legal relief for damage caused by subsidies prohibition triggered by improper determination of IUU fishing should be stipulated; Territorial and maritime jurisdiction disputes should be completely excluded from WTO fishery subsidy agreement; Prohibition on subsidies to unreported and unregulated fishing should be exempted for developing countries from non-large industrial fisheries in waters on the landward side of the outer boundary of territorial sea. In addition, it is suggested that China should firmly maintain its status as a developing country, further strengthen the elimination of subsidies to IUU fishing, revise the Fisheries Law as soon as possible to improve the provisions against IUU fishing, and join the Agreement on Port State Measures as soon as possible.