The agreement on fisheries subsidies and South Africa

Abstract

PURPOSE : The World Trade Organization (WTO) Agreement on Fisheries Subsidies (AFS) is only the third agreement finalised after the establishment of WTO. Negotiations on the AFS started as part of the package agreed at the WTO Ministerial Conference in Doha in 2001. Negotiations gained impetus after the adoption of the United Nations’ Sustainable Development Goals (SDGs) in 2012, and the agreement was adopted unanimously at the 12th WTO Ministerial Conference (MC12) in July 2022. Thus, it took 21 years to reach agreement on the most important issues to be included in the AFS, but negotiations are continuing on several outstanding issues. The AFS relates only to marine wild catch and does not relate to freshwater catch or to aquaculture. The AFS will only enter into force when two-thirds of all WTO Members have ratified it. Since the WTO at present has 166 Members, this means a total of 111 ratifications are required. As of 12 August 2025, there have been 107 ratifications. This means that another 4 ratifications are required. As this is the most recent WTO Agreement, and especially as it is not yet in force, very little has been written about it in the academic world, and nothing has been written about it from a (South) African perspective. This study is a first attempt at filling that void. This study will first consider the rationale for the AFS, before looking at the main features thereof. It will then consider the importance of the AFS for South Africa, before concluding. The purpose of this paper is to evaluate the compatibility of South Africa’s current framework for subsidies with the AFS. DESIGN/METHODOLOGY/APPROACH : The paper uses a desktop study assessing legislation, relevent literature, policy and case law. FINDINGS : The paper finds that South Africa’s framework for fisheries subsidies is fragmented and thus unsuited to complying with the AFS since the frameworks for sustainable fishing and countervailing measures are disconnected and administered by different functional authorities and legislation. Furthermore, the current framework for subsidies in South Africa does not provide for prohibited subsidies as envisaged under the AFS. Thirdly, this paper contend that there must be a subsidy reduction commitment that differentiates between developing and developed countries. Consequently, this paper argues that the principle of common but differentiated responsibility must be an express principle of the AFS guiding the interpretation of the obligations therein. In keeping with this ethos, this paper implores that the “due restraint” provision in Article 6 of the AFS applied when raising and exploring solutions for least developed countries must be expanded to include developing countries such as South Africa and other African countries whose waters have been pillaged by fisheries subsidies. Finally, this paper insist that the AFS must carve out an exemption for artisanal and substance fishers. RESEARCH LIMITATIONS/IMPLICATIONS : The paper would have liked to give a regional picture, but this is not possible because these legal systems are not readily available. PRACTICAL IMPLICATIONS : The paper offers a blueprint for South Africa to ready itself and to comply with its obligations from a legal perspective. SOCIAL IMPLICATIONS : The paper advocates for the plight of small-scale fisheries and the pillaging of fish resources on the African continent without commenting on the applicable legal framework for the continent. ORIGINALITY/VALUE : To the best of the authors’ knowledge, this paper is a first attempt at explaining the legal implications of the AFS on South Africa.