On the Ratification of the Protocol Amending the Marrakesh Agreement Establishing the World Trade Organization (Agreement on Fishing Subsidies)

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The Law of the Republic of Kazakhstan dated June 19, 2024 No. 92-VIII SAM.

To ratify the Protocol amending the Marrakesh Agreement Establishing the World Trade Organization (Agreement on Fishing Subsidies), signed in Geneva on June 17, 2022.

President

Republic of Kazakhstan

K. TOKAEV

Unofficial translation

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PROTOCOL ON AMENDMENTS TO THE MARRAKESH AGREEMENT ESTABLISHING THE WORLD TRADE ORGANIZATION AGREEMENT ON FISHING SUBSIDIES

Members of the World Trade Organization,

Having regard to the decision of the Ministerial Conference in document WT/MIN(22)/33 - WT/L/1144, adopted in accordance with paragraph 1 of article X of the Marrakesh Agreement Establishing the World Trade Organization ("WTO Agreement");

We have hereby agreed on the following:

1. After the entry into force of this Protocol in accordance with paragraph 4, Annex 1A to the WTO Agreement shall be amended by including the Agreement on Fishing Subsidies, as specified in the Annex to this Protocol, and its location after the Agreement on Subsidies and Countervailing Measures.

2. No reservations may be made with respect to any of the provisions of this Protocol.

3. This Protocol is open for adoption by the Members.

4. This Protocol shall enter into force in accordance with paragraph 3 of Article X of the WTO Agreement.1

5. The depositary of this Protocol shall be the Director General of the World Trade Organization, who shall promptly provide each member with a certified copy of this Protocol and a notification of each acceptance in accordance with paragraph 3.

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1 For the purposes of calculating the number of acceptance documents in accordance with Article X:3 WTO Agreements An instrument of acceptance in respect of the European Union itself and in respect of its member States is considered an instrument of acceptance by the number of members equal to the number of member States of the European Union that are members of the WTO.

6. This Protocol is subject to registration in accordance with the provisions of Article 102 of the Charter of the United Nations.

Done at Geneva on June 17, 2022, in a single copy in the English, French and Spanish languages, all texts being equally authentic.

Unofficial translation

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ANNEX AGREEMENT ON FISHING SUBSIDIES ARTICLE 1: SCOPE OF APPLICATION

This Agreement applies to subsidies within the meaning of article 1.1 of the Agreement on Subsidies and Countervailing Measures (SCM Agreement), which are specific within the meaning of article 2 of the said Agreement, in relation to marine fisheries and fishing-related activities carried out at sea.2,3,4

ARTICLE 2: DEFINITIONS

For the purposes of this Agreement:

(a) "fish" means all types of living marine resources, whether processed or not;

(b) "Fishing" means the search, attraction, discovery, capture, seizure or extraction of fish, or any activity that is reasonably expected to lead to the attraction, discovery, capture, seizure or extraction of fish;

(c) "Fishing-related activity" means any activity in support of or in preparation for fishing, including the unloading, packaging, processing, transshipment or transportation of fish that have not previously been unloaded at a port, as well as the provision of personnel, fuel, fishing gear and other supplies at sea;

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2 For the sake of clarity, aquaculture and fishing in inland waters are excluded from the scope of this Agreement.

3 For the sake of clarity, interstate payments under agreements on access to fisheries resources are not considered as subsidies under this Agreement.

4 For the sake of clarity, for the purposes of this Agreement, a subsidy refers to the member providing it, regardless of the flag or registration of any vessel involved or the nationality of the recipient of the subsidy.

(d) "Vessel" means any vessel of any type or floating facility used, equipped for use, or intended for use in fishing or fishing-related activities;

(e) "operator" means the owner of the vessel or any person who is responsible for, directs or controls the vessel.

ARTICLE 3: SUBSIDIES THAT PROMOTE ILLEGAL, UNREPORTED AND UNREGULATED FISHING

3.1 No Member grants or retains any subsidy to a vessel or operator6 engaged in illegal, unreported and unregulated (IUU) fishing or fishing-related activities in support of IUU fishing.

3.2 For the purposes of Article 3.1, a vessel or operator is considered to be engaged in IUU fishing if a positive decision to do so is made by any of the following:7,8:

(a) a coastal Member with respect to activities in areas under its jurisdiction; or

(b) a Member State of the flag in respect of vessels operating under its flag; or

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5 "Illegal, unreported and unregulated (IUU) fishing" refers to the activities outlined in paragraph 3 of the International Plan of Action for the Prevention, Control and Elimination of Illegal, Unreported and Unregulated Fishing, adopted by the Food and Agriculture Organization of the United Nations (FAO) in 2001.

6 For the purposes of article 3, the term "operator" means the operator within the meaning of article 2 (e) at the time of the commission of the IUU fishing offence. For the sake of clarity, the prohibition on granting or maintaining subsidies to operators engaged in IUU fishing applies to subsidies provided for fishing and fishing-related activities carried out at sea.

7 Nothing in this article should be interpreted as an obligation for members to initiate investigations or make decisions regarding IUU fishing.

8 Nothing in this article should be interpreted as affecting the competence of listed entities under relevant international instruments or granting new rights to listed entities when making a decision on IUU fishing.

(c) the relevant regional fisheries management organization or arrangement (RFMO/A) in accordance with the rules and procedures of the RFMO/A and relevant international law, including by providing timely notification and relevant information, for those areas and for those species that fall within its competence.

3.3 (a) A positive resolution9 under Article 3.2 means the final decision of a member and/or the final inclusion in the RFMO/A list, meaning that the vessel or operator was engaged in IUU fishing.

(b) For the purposes of Article 3.2 (a), the prohibition provided for in Article 3.1 applies if the coastal member's decision is based on relevant factual information and if the coastal member has provided the flag State member and the subsidizing member, if known, with the following:

(i) timely notification through appropriate channels that a vessel or operator has been temporarily detained pending further investigation into IUU fishing, or that a coastal member has initiated an investigation into IUU fishing, including reference to any relevant factual information, applicable laws, regulations, administrative procedures or other appropriate measures;

(ii) the possibility of exchanging relevant information10 prior to the decision, so that such information is taken into account in the final decision. The coastal Member may specify the method and time period during which such information exchange should take place; and

(iii) notification of the final decision and any penalties applied, including, if possible, their duration.

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9 Nothing in this article should be interpreted as delaying or affecting the validity and enforceability of the IUU fishing decision.

10 For example, this may include the opportunity for dialogue or written exchange of information at the request of a flag State member or a subsidizing member.

The Coastal Member shall notify the Committee provided for in Article 9.1 (referred to in this Agreement as the "Committee") of the positive decision.

3.4 The subsidizing Member shall take into account the nature, severity and frequency of IUU fishing carried out by the vessel or operator when determining the duration of the application of the prohibition under Article 3.1. The prohibition under Article 3.1 shall apply as long as the punishment11 resulting from the decision initiating the prohibition remains in force, or as long as the vessel or operator is included in the list RFMO/A - whichever is longer.

3.5 The subsidizing Member shall notify the Committee in accordance with Article 8.3 of the measures taken pursuant to Article 3.1.

3.6 If a port State Member notifies the subsidizing member that it has clear grounds to believe that a vessel located in one of its ports has engaged in IUU fishing, the subsidizing member shall take due account of the information received and take such action with respect to its subsidies as it deems necessary.

3.7 Each Member shall have laws, regulations and/or administrative procedures to ensure that the subsidies referred to in Article 3.1, including those existing at the time of entry into force of this Agreement, are not provided or maintained.

3.8 Within 2 years from the date of entry into force of this Agreement, subsidies provided or maintained by developing member countries, including least developed member countries (LDCs), prior to and within the exclusive economic zone (EEZ), shall be exempt from actions based on Articles 3.1 and 10 of this Agreement.

ARTICLE 4: SUBSIDIES FOR OVERFISHED STOCKS

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11 The duration of the penalties shall be terminated in accordance with the legislation or procedures of the body that issued the decision referred to in Article 3.2.

4.1 No Member grants or retains subsidies for fishing or fishing-related activities in respect of overfished stock.

4.2 For the purposes of this article, a fish stock is overfished if it is recognized as overfished by the coastal member under whose jurisdiction the fishery is conducted, or by the relevant RFMO/A for those areas and those species within its competence, based on the most reliable scientific data available to the coastal member or RFMO/A.

4.3 Notwithstanding Article 4.1, a Member may grant or retain the subsidies referred to in Article 4.1 if such subsidies or other measures are applied to restore the stock to a biologically sustainable level.12

4.4. Within 2 years from the date of entry into force of this Agreement, subsidies provided or maintained by developing member countries, including LDC members, before and within the EEZ, shall be exempt from actions based on Articles 4.1 and 10 of this Agreement.

ARTICLE 5: OTHER SUBSIDIES

5.1 No member grants or retains subsidies for fishing or fishing-related activities outside the jurisdiction of a coastal member or a non-member coastal State and outside the competence of the relevant RFMO/A.

5.2 A Member shall pay special attention and exercise due restraint when providing subsidies to vessels not flying the flag of that Member.

5.3 A Member shall pay special attention and exercise due restraint when providing subsidies for fishing or fishing-related activities in respect of stocks whose status is unknown.

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12 For the purposes of this paragraph, a biologically sustainable level is a level determined by a coastal member having jurisdiction over an area where fishing or fishing-related activities are carried out, using reference criteria such as maximum sustainable catch (MPF) or other reference criteria commensurate with the data available for fishing; or determined by the relevant RFMO/And for those areas and for those species that are within its competence.

ARTICLE 6: SPECIAL PROVISIONS FOR LDC MEMBERS

The Member shall exercise due restraint when submitting issues concerning LDC members for consideration, and the solutions being explored shall take into account the special situation of the LDC member concerned, if any.

ARTICLE 7: TECHNICAL ASSISTANCE AND CAPACITY-BUILDING

Targeted technical assistance and capacity-building support for developing member countries, including LDC members, are provided in order to comply with the rules provided for in this Agreement. A voluntary financing mechanism is being established within the WTO to support such assistance in cooperation with relevant international organizations such as the Food and Agriculture Organization of the United Nations (FAO) and the International Fund for Agricultural Development. WTO members' contributions to the mechanism are made solely on a voluntary basis and do not use regular budget resources.

ARTICLE 8: NOTIFICATION AND TRANSPARENCY

8.1 Without prejudice to Article 25 of the SCM Agreement and in order to strengthen and improve notifications on fishing subsidies, as well as to ensure more effective oversight of the implementation of obligations on fishing subsidies, each Member

(a) provides the following information as part of the regular notification of fishing subsidies in accordance with Article 25 of the SCM13,14 Agreement: the type or type of fishing activity for which the subsidy is provided;

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13 For the purposes of Article 8.1, Members shall provide this information in addition to all information required under Article 25 of the SCM Agreement, as well as in accordance with any questionnaire used by the SCM Committee, for example, G/SCM/6/Rev.l.

14 For LDC members and developing country members with an annual share of global marine fisheries production not exceeding 0.8%, according to the most recent published FAO data distributed by the WTO Secretariat, notification of additional information in this subparagraph may be made every four years.

(b) to the extent possible, provide the following information as part of the regular notification of fishing subsidies in accordance with Article 25 of the SCM12’13 Agreement:

(i) The status of fish stocks in the fishing area for which the subsidy is provided (e.g. overfishing, maximum sustainable catch or underfishing), the reference criteria used, and whether such stocks are shared with any other member,15 or are managed by the RFMO/A;

(p) Conservation and management measures taken in relation to the relevant fish stock;

(iii) The capacity of the fleet in the fishing area for which the subsidy is provided;

(iv) The name and identification number of the fishing vessel or vessels receiving the subsidy; and

(v) Catch data by species or groups of species in the fishing area for which the subsidy is provided.16

8.2 Each member shall annually notify the Committee in writing of the list of vessels and operators for which it has made positive decisions on IUU fishing.

8.3 Each member shall, within one year from the date of entry into force of this Agreement, inform the Committee of existing or adopted measures to ensure the implementation and administration of this Agreement, including steps taken to implement the prohibitions provided for in Articles 3, 4 and 5. In addition, each member shall promptly inform the Committee of any subsequent changes to such measures. and new measures taken to implement the prohibitions provided for in article 3.

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15 The term "joint reserves" refers to reserves that occur in the EEZ of two or more coastal members, or within the EEZ and in the area beyond and adjacent to it.

16 Instead, for a multi-species fishery, a member may provide other relevant and accessible catch data.

8.4 Each Member, within one year from the date of entry into force of this Agreement, shall submit to the Committee a description of its fishing regime with references to its laws, regulations and administrative procedures related to this Agreement, and promptly inform the Committee of any changes thereafter. A Member may fulfill this obligation by providing the Committee with an up-to-date electronic link to the member's official web page or other relevant official web page containing this information.

8.5 A Member may request additional information from the member providing the notification regarding notifications and information provided in accordance with this article. The Member providing the notification shall respond to such request as soon as possible in writing and in an exhaustive manner. If a member considers that notification or information under this article has not been provided, he may bring the matter to the attention of such other member or Committee.

8.6 Members shall notify the Committee in writing after the entry into force of this Agreement of any RFMO/A to which they are parties. Such notification should contain, at a minimum, the text of the legal document establishing the RFMO/A, the area and species within its competence, information on the status of managed fish stocks, a description of its conservation and management measures, rules and procedures governing decisions on IUU fishing, and updated lists of vessels and/or operators. who, in accordance with its decisions, were engaged in IUU fishing. This notification can be submitted either individually or by a group of members.17 Any changes in this information are promptly notified to the Committee. The Committee's secretariat shall maintain a list of RFMOs/A notified in accordance with this article.

8.7 Members recognize that notification of the measure does not prejudice (a) its legal status under GATT 1994, the SCM Agreement or this Agreement; (b) the effects of the measure under the SCM Agreement; or (c) the nature of the measure itself.

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17 This obligation can be fulfilled by providing an up-to-date electronic link to the relevant official web page of the member providing the notification or another relevant official web page containing this information.

8.8 Nothing in this article requires the provision of confidential information.

ARTICLE 9: INSTITUTIONAL PROVISIONS

9.1 A Committee on Fishing Subsidies is hereby established, consisting of representatives from each member. The Committee elects its chairman and meets at least twice a year or, as provided for in the relevant provisions of this Agreement, at the request of any member. The Committee performs the duties assigned to it by this Agreement or by the members, and provides members with the opportunity to consult on any issues related to the operation of this Agreement or the promotion of its objectives. The WTO secretariat performs the functions of the Committee's secretariat.

9.2 The Committee shall examine all information provided pursuant to articles 3 and 8, as well as this article, at least every two years.

9.3 The Committee annually reviews the implementation and operation of this Agreement, taking into account its objectives. The Committee annually informs the Council for Trade in Goods of developments during the period covered by such reviews.

9.4 No later than five years after the date of entry into force of this Agreement and every three years thereafter, the Committee shall review the operation of this Agreement in order to identify all necessary changes to improve the operation of this Agreement, taking into account its objectives. In appropriate cases, the Committee may submit proposals to the Council for Trade in Goods on amendments to the text of this Agreement, drawing attention, in particular, to the experience gained during its implementation.

9.5 The Committee maintains close contacts with FAO and other relevant international organizations in the field of fisheries management, including the relevant RFMO/A.

ARTICLE 10: DISPUTE SETTLEMENT

10.1 The provisions of Articles XXII and XXIII of GATT 1994, as elaborated and applied in the Agreement on Rules and Procedures Governing Dispute Resolution (DRS), apply to consultations and dispute settlement under this Agreement, except as specifically provided for in this Agreement.18

10.2 Without prejudice to paragraph 1, the provisions of Article 4 of the SCM19 Agreement shall apply to consultations and dispute resolution regarding the implementation of Articles 3, 4 and 5 of this Agreement.

ARTICLE 11: FINAL PROVISIONS

11.1 Except as provided in Articles 3 and 4, nothing in this Agreement shall prevent a Member from providing a disaster relief subsidy,20 provided that the subsidy:

a) limited to providing assistance in the event of a specific disaster;

b) limited to the affected geographical area;

d) in the case of reconstruction grants, it is aimed at restoring only the affected fishing area and/or the affected fleet to pre-disaster levels.

11.2 (a) This Agreement, including any conclusions, recommendations and decisions with respect to this Agreement, does not have any legal consequences with respect to territorial claims or maritime delimitation.

(b) The Panel of Arbitrators established pursuant to article 10 of this Agreement shall not draw any conclusions with respect to any complaint that would require it to base its conclusions on any alleged territorial claims or maritime delimitation.21

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18 Subparagraphs 1 (b) and 1 (c) of Article XXIII of the GATT 1994 and Article 26 of the DRC do not apply to the settlement of disputes under this Agreement.

19 For the purposes of this article, the term "prohibited subsidy" in Article 4 of the CCM Agreement refers to subsidies that are prohibited in Articles 3, 4 or 5 of this Agreement.

20 For the sake of clarity, this provision does not apply to economic or financial crises.

11.3 Nothing in this Agreement shall be interpreted or applied in such a way as to prejudice the jurisdiction, rights and obligations of the members arising under international law, including the law of the sea22.

11.4 Except as provided in this Agreement, nothing in this Agreement implies that a member becomes bound by measures or decisions or recognizes any RFMO/A in which it is not a party or a cooperating party that is not a member of RFMO/A.

11.5 This Agreement does not change or cancel any rights and obligations stipulated by the SCM Agreement.

ARTICLE 12: TERMINATION OF THE AGREEMENT IF COMPREHENSIVE RULES ARE NOT ADOPTED

Unless comprehensive regulations are adopted within four years after the entry into force of this Agreement, and unless otherwise decided by the General Council, this Agreement shall terminate immediately.

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21 This limitation also applies to an arbitrator appointed in accordance with article 25 of the Agreement on Rules and Procedures Governing Dispute Resolution.

22 Including the rules and procedures of the RFMO/A.

I hereby confirm that the above text is an original copy of the Protocol amending the Marrakesh Agreement Establishing the World Trade Organization, the Agreement on Fishing Subsidies, adopted in Geneva on June 17, 2022, the original of which has been deposited with the Director General of the World Trade Organization.

Signature

Ngozi Okonjo-Iweala

General manager

I hereby confirm that the above-mentioned text of the Protocol on Amendments to the Marrakesh Agreement Establishing the World Trade Organization (Agreement on Fishing Subsidies), adopted in Geneva on June 17, 2022, corresponds to the original text of the Protocol in English.

Vice Minister of Agriculture

Republic of Kazakhstan

A. Berdalin

President

Republic of Kazakhstan

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