A/HRC/55/49 66. However, the phrase “illegal, unreported and unregulated fishing” conflates several distinct activities into one notion. 73 Illegal fishing refers to activities that contravene the United Nations Convention on the Law of the Sea, regional or national conservation measures and national laws and relevant international obligations of States (WTO Agreement, art. 3 74)). Sometimes national efforts to combat illegal fishing have led to overzealous arrests, the destruction of property, including fishing gear and boats, and physical assault.75 Moreover, unreported or unregulated fishing activities are not necessarily illegal; for example, many small-scale fishers work in informal markets and their activity would be unfairly caught under the umbrella category.76 Thus, disciplines against illegal, unreported and unregulated fishing could place a significant burden on developing and least-developed countries along with small-scale fishers. 67. In responding to the Agreement’s conceptual ambiguity, States should turn to the Voluntary Guidelines, which provide practical guidance. Accordingly, States are strongly encouraged to ensure that the information necessary for responsible small-scale fisheries and sustainable development is available, including on illegal, unreported and unregulated fishing. This includes taking a holistic perspective that allows States to make nuanced, context-specific distinctions regarding what counts as illegal, unreported or unregulated fishing and paying particular attention to the situation of vulnerable and marginalized groups.77 68. Moreover, States should recognize local norms and practices – including customary tenure systems and other systems that grant preferential access to fishery resources and land to small-scale fishers, Indigenous Peoples and ethnic minorities – as regulated fishing. 78 2. Overfished stocks 69. The WTO Agreement prohibits member States from granting or maintaining subsidies for fishing or fishing-related activities regarding an overfished stock as determined by the relevant regional fisheries management organizations or associations (arts. 4 (1) and (2)). A stock is generally considered overfished when it is exploited beyond an explicit limit set to ensure safe reproduction.79 The Agreement provides for an exception “if such subsidies or other measures are implemented to rebuild the stock to a biologically sustainable level” (art. 4 (3)). A biologically sustainable level is the level determined by the State having jurisdiction over the area where the fishing or fishing-related activity is taking place or by a relevant regional fisheries management organization or association, based on the best scientific evidence available to it. However, many developing and least developed States do not have the resources to establish the appropriate monitoring mechanisms to measure and determine sustainable levels. Some have ironically called this provision special and differential treatment for developed countries, since richer countries have the resources to marshal the evidence necessary to invoke this exception and subsidize their fisheries, granting them a market advantage over fishers in developing and least-developed countries.80 70. This power imbalance can be addressed by States or regional fisheries management organizations or associations through the Voluntary Guidelines, which provide that States should recognize the role of small-scale fishing communities and Indigenous Peoples to restore, conserve, protect and co-manage local aquatic and coastal ecosystems (para. 5.5). Moreover, “best scientific evidence” must include scientific knowledge augmented by 73 74 75 76 77 78 79 80 14 A/67/268, paras. 48 and 49; and Eva R. van der Marel, “Problems and progress in combating IUU fishing”, in Strengthening International Fisheries Law in an Era of Changing Oceans, Richard Caddell and Erik J. Molenaar, eds., (Oxford, Hart, 2019). Citing FAO, International Plan of Action to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing, sect. 3.1. Submission from FIAN Uganda. Voluntary Guidelines, para. 6.6. Ibid., para. 11.5. Ibid., paras. 5.1–5.4. See https://www.wto.org/english/thewto_e/glossary_e/overcapacity_fishing_e.htm. See https://focusweb.org/policy-livelihood-challenges-for-indias-fishing-communities-implicationsof-the-wto-agreement/, video 1. GE.23-26071