I have just had a look at the new draft Annex VIII of the SCM on fisheries subsidies. There is a lot to say on this Annex but there was a point that I impatiently wanted to check, namely the recognition or not for the first time of the concept of Environmentally Harmful Subsidies.
Until now, all the philosophy of the SCM was based on trade related adverse effects (contingency on export performance, lost market shares, price undercutting, etc.). We find however in the new draft text some expressions that seem really to add something to this traditional philosophy, something resembling what one may call "environmentally adverse effects". For example, “any subsidy....the benefits of which are conferred on any fishing vessel or fishing activity affecting fish stocks that are in an unequivocally overfished condition shall be prohibited”.Let us note, by the way, that in order to determine when a stock is "unequivocally overfished", panelists and the AB would have to cross the famous "green line" and rule with the help of experts and NGOs as amicus curiae on ecological issues in which they have no particular expertise. Moreover, “No Member shall cause, through the use of any subsidy ...depletion of or harm to, or creation of overcapacity...” in respect of certain fishing stocks.
Although this may not be apparent to everyone, it seems to me that we see here in its infancy, thanks to the wonderful job on this issue of many NGOs such as the World Wildlife Fund (WWF) and institutions such as the OECD, the emergence of a new legal regime for subsidies based on a new philosophy, namely the concept of Environmentally Harmful Subsidies (EHS). Could it be an inspiration in the future for other fields beyond fisheries? Of course, the most obvious field would be another common pool resource, no less important than fish in the oceans: the atmosphere of our planet.
