TWN
Info Service on WTO and Trade Issues (Nov17/22)
24 November 2017
Third World Network
Streamlined texts emerge on IUU fishing, overfished stocks
Published in SUNS 8581 dated 23 November 2017
Geneva, 22 Nov (Kanaga Raja) - The WTO Negotiating Group on Rules,
meeting over five days last week (13-17 November), saw the completion
of efforts by a group of members to streamline texts on prohibited
subsidies relating to IUU (illegal, unreported and unregulated) fishing
and on overfished stocks.
According to trade officials, the cleaner working texts on both these
issues were then accepted by the wider membership as the basis for
further negotiations.
However, no formal decision has been taken by the members on what
an agreement at MC11 (eleventh WTO ministerial conference in Buenos
Aires this December) could include, with another cluster of meetings
scheduled to take place here on 27-29 November, said trade officials.
In a communication to the members (TN/RL/W/274), the Chair of the
Negotiating Group on Rules, Ambassador Wayne McCook of Jamaica, explained
that the working documents on prohibited subsidies relating to IUU
fishing and overfished stocks have emerged from the intensive work
in the Negotiating Group on Rules at its cluster in the week of 13-17
November.
These two working documents relate to two of the proposed prohibitions
on fisheries subsidies being considered in the Group, relating to
overfished stocks and to illegal, unreported and unregulated fishing.
"These working documents are the result of a collective effort
by delegations, and represent an effort to develop working texts that
could present with some degree of clarity the numerous issues, approaches,
and views before the Group in these areas."
Their purpose is to facilitate further work of the Group, and they
can be expected to continue to evolve. They are of course entirely
without prejudice to the position of any delegation, said the Chair.
These documents cover only two of the many issues before the Group,
the Chair underlined.
"The Group will need to continue its efforts in all remaining
areas, with a view to developing similar working texts and otherwise
advancing its work on additional prohibitions such as overcapacity
and capacity-enhancing subsidies; special and differential treatment;
transparency and notifications; standstill; preamble; scope; transitional
provisions; and institutional arrangements," he said.
The working documents attached to the communication state as follows:
"ARTICLE 3: PROHIBITED SUBSIDIES
[No Member shall grant or maintain [, in law or in fact,] any of the
following subsidies within the meaning of Article 1.1 of the SCM Agreement
[that are specific within the meaning of Article 2 of that Agreement]
[to vessels, operators], [fishing or fishing activities]:
Illegal, Unreported and Unregulated (IUU) fishing
3.1 Subsidies [provided to] [granted to] a fishing [vessel, [regardless
of the flag of the vessel involved,] or operator] engaged in IUU fishing,
[ALT1: including those]
[ALT2: [as] [while]]
[identified by,] determined by, or listed in an IUU fishing list of:
a) a Member in respect of vessels flying its flag [in accordance with
its law] [in accordance with its domestic laws, regulations and administrative
procedures]. [When the flag Member and the subsidizing Member are
not the same, the fishing vessel concerned shall be notified to the
subsidizing Member, and [the determination shall be] verified by the
subsidizing Member [in accordance with its law.] [in accordance with
its domestic laws, regulations and administrative procedures.]
b) a subsidizing Member [in accordance with its domestic laws, regulations
and administrative procedures].
c) a Member in respect of foreign-flagged vessels found fishing in
waters under its jurisdiction. In this case, a subsidizing Member
shall, upon request by that Member [or on its own initiative,] [recognize]
[take into account, as appropriate] this determination provided that
the subsidizing Member promptly [verifies] [the determination] [determines],
[in accordance with its law] [in accordance with its domestic laws,
regulations and administrative procedures], [and] that the [relevant]
international law and principles of non-discrimination, due process,
[including a procedure for appeal or review,] and transparency were
respected in making that determination.
ALT: a Member in respect of foreign-flagged vessels fishing in its
waters, provided that the subsidizing Member promptly [verifies] [determines],
[in accordance with its law] [in accordance with its domestic laws,
regulations and administrative procedures], that the Member followed
fair, transparent, and non-discriminatory procedures and acted in
conformity with [international law] in making its determination [based
on positive evidence].
d) a Regional Fisheries Management Organization [or Arrangement] [including
those organizations [or arrangements] of which Members are not Party],
provided that the subsidizing Member promptly [investigates and] [verifies]
[determines], [in accordance with its law] [in accordance with its
domestic laws, regulations and administrative procedures], that the
[vessel/operator] concerned has been listed [based on positive evidence]
in accordance with the rules and procedures of that organization [or
arrangement] [including a procedure for appeal or review] and in conformity
with international law applicable to the subsidizing Member and those
organizations [or arrangements] are in conformity with [FAO IPOA-IUU,]
principles of non-discrimination, openness to all WTO Members, due
process and transparency. [Provided, however, that in the case of
fishing in waters under the national jurisdiction of a subsidizing
Member, such determinations shall be made by the national authority
of the subsidizing Member.]
[ALT: a Regional Fisheries Management Organization [or Arrangement]
in accordance with the rules and procedures of that organization [or
arrangement] and in conformity with international law.] [including
verification mechanisms to enable Members that are not a party to
those organizations [or arrangements] to engage in the listing process
under the rules of procedure] [; and, if the subsidizing Member is
not a party to a Regional Fisheries Management Organization [or Arrangement],
provided that [it promptly verifies that] that organization [or arrangement]
is in conformity with [FAO IPOA-IUU,] principles of non discrimination,
openness to all WTO Members, due process and transparency.]
e) [the FAO [subject to its recognition by the SCM committee.]]]
OVERFISHED DISCIPLINE (TO REPLACE 3.6-3.9)
3.6. Subsidies for fishing [and fishing related activities] [outside
the territorial sea] [of]/[that negatively affect] [targeted] fish
stocks that are in an overfished condition.
[The negative effect of such subsidies shall be determined] [by the
subsidizing Member] based on the [best] scientific evidence [available
to] [recognized by] [that Member.]]
[A fish stock is overfished if
[A it has not been assessed or has been assessed to be in an overfished
condition.]
[B ALT1: it is recognized as such by the Member in whose [national
jurisdiction] [EEZ] the fishing is taking place or by a Regional Fisheries
Management Organization [or Arrangement] based on [best] scientific
evidence available to [and recognized by] them.]
[B ALT2: the stock is at such a low level that mortality from fishing
needs to be [restricted] to allow the stock to rebuild to a level
that produces maximum sustainable yield or [alternative] reference
points based on the [best] scientific evidence [available]. Fish stocks
that are recognized as overfished by the national jurisdiction where
the fishing is taking place or by a relevant fisheries management
organization [or arrangement] shall also be considered overfished.]
[B ALT2bis: the stock is at such a low level that mortality from fishing
needs to be [restricted] to allow the stock to rebuild to a level
that produces maximum sustainable yield or [alternative] reference
points based on the [best] scientific evidence [available] and with
no effective management plan in place. Fish stocks that are recognized
as overfished by the national jurisdiction where the fishing is taking
place or by a relevant fisheries management organization [or arrangement]
shall be considered overfished.]
[B ALT3: the stock is at such a low level that mortality from fishing
needs to be [restricted] to allow the stock to rebuild to a level
that produces maximum sustainable yield or [alternative] reference
points based on the [best] scientific evidence available [to the Member
within its jurisdiction or to the relevant RFMO [or Arrangement]],
[as recognized by the national jurisdiction where the fishing is taking
place or by the relevant fisheries management organization [or arrangement.]]
[The determination by an RFMO [or Arrangement], shall be made after
examination of the objections, if any, of the Member concerned].
In the cases of straddling and highly migratory fish stocks, shared
among Members, the evaluation related to the fish stocks in the fishery
for which the subsidy is provided shall be made pursuant cooperation
of the Members involved.]
C ALT 1 [In the absence of sufficient data to make such a determination,
the stock shall be presumed to be in an overfished condition.]
C ALT 2 [In the absence of scientific evidence to make such a determination
due to a lack of capacity, this paragraph does not apply until the
Member acquires the capacity to conduct stock assessments.]
3.7. [Subsidies [to vessels or operators fishing] [in connection with
fishing and fishing related activities] in areas beyond national jurisdictions
which are not aimed to fulfill a quota or a right established by a
RFMO [or Arrangement].]
3.7. ALT [Subsidies [to vessels or operators fishing] [in connection
with fishing and fishing related activities] in areas beyond national
jurisdictions which are not aimed to fulfill a quota or a right established
by a RFMO [or Arrangement] and which negatively affect targeted fish
stocks that are in an overfished condition].
3.8. [Illustrative list of subsidies that do not negatively affect
targeted fish stocks that are in an overfished condition:
(a) subsidies that improve fishery management systems and [thus] promote
sustainable fisheries including subsidies for research and development
activities;
(b) subsidies that improve hygiene, health, safety and working conditions
for fishers;
(c) subsidies aiming at improving the concerned Member's capacity
to fight against IUU fishing;
(d) subsidies for [permanent] cessation of fishing activities provided
that the fishers concerned effectively cease all fishing activities
within a reasonable timeframe after receiving the subsidy concerned.]
(e) [subsidy programmes of Members aimed to fulfill a quota or a right
established by a RFMO]"
According to trade officials, a smaller group of members, with anyone
being welcome to join, worked together to draft a cleaner text for
the parts of the agreement covering IUU fishing and overfished stocks,
taking into account the various options proposed.
The group included the members behind the seven original proposals
on fisheries subsidies, Russia, Turkey, the United States, India,
Australia, Canada, Guatemala, China and Brazil.
The proponents behind the seven textual proposals tabled so far are
New Zealand, Iceland and Pakistan (TN/RL/ GEN186); the European Union
(TN/RL/GEN/181/Rev. 1); Indonesia (TN/RL/GEN/189/ Rev. 1); the African,
Caribbean and Pacific (ACP) Group of countries ((TN/RL/GEN/192); Argentina,
Colombia, Costa Rica, Panama, Peru and Uruguay (TN/RL/GEN/187/Rev.
2); the Least Developed Countries (TN/RL/ GEN/193); and Norway (TN/RL/GEN/191).
It was clarified that the new text did not represent a common position
within the small group but instead just simplified the bracketed texts
and options found in the previous working document for easier reference.
According to trade officials, a number of members said that there
were some agreement already on the section of the agreement relating
to transparency, which contains obligations for members to notify
information on fisheries subsidies and management programs.
According to the US, there was a "fair bit of overlap in the
different proposals here." The EU also said that there was already
much convergence among the transparency proposals.
China and Russia expressed support for the suggestion made by the
US for a small group effort to streamline the text for this chapter
of the agreement.
On the issue of inland fisheries, the US withdrew its proposal to
include "inland fisheries" (which covers fresh water fishing)
in the coverage of an agreement on the prohibition of fisheries subsidies.
The US said: "The same issues faced in marine fisheries are prevalent
in inland fisheries especially concerns of overfishing and overcapacity.
We were somewhat surprised and disappointed about the degree of members'
opposition to covering inland fisheries. We have consulted further
on this issue and we are willing to agree to limit the scope to marine
capture fisheries in the interest of making progress."
According to trade officials, India proposed the exclusion of fuel
subsidies from the scope of the agreement, inserting text into the
chapter on "Scope" of the draft agreement stating that the
agreement "shall not apply to fuel subsidies."
"We think it is an even-handed proposal ... The question is how
much sacrifices developing country members will be making if fuel
subsidies are made part of the agreement. If members feel this should
not be kept out, then developing countries will be asking for special
and differential treatment," India said.
Venezuela and Ecuador expressed support for India's proposal, while
New Zealand and the United States voiced opposition, saying that fuel
subsidies make up the largest component of fisheries subsidies.
The US added that it could not accept a low-ambition proposal.
Brazil said that such a carve-out for fuel subsidies should be tempered
with a condition that the support will go to fishing activities conducted
in a sustainable manner.
Russia proposed new text namely that "members shall not grant
or maintain any subsidies for provision or use of fuel or schemes
which can reasonably be expected to result in the provision or use
of fuel which benefit the fisheries sector."
"We want to capture all schemes [including] de-taxation schemes,"
Russia said, in reference to the EU's proposed carve-out.
According to trade officials, the EU said the Russian proposal would
mean including "non-specific" subsidies and thus would fall
outside the scope of the existing WTO Agreement on Subsidies and Countervailing
Measures.
This agreement disciplines only specific subsidies, or those available
only to a particular enterprise or industry.
The Chair said that the shift in discussions away from the "specificity"
standard would require substantial reflection from members.
According to trade officials, India also proposed new text for an
exemption concerning illegal, unreported and unregulated (IUU) fishing.
India has proposed that the "prohibition ... in respect of unreported
and unregulated fishing shall not apply to developing countries including
least developed countries (LDCs) for fishing activities in the EEZ
[excusive economic zone] of the subsidizing member."
The US, the EU, New Zealand, Canada and Australia voiced their opposition.
According to trade officials, the Chair since then has been holding
consultations with India and other members to see how their concerns
can be better addressed.
Apart from these issues, divergent views persisted among the members
in the same areas from the previous cluster of meetings held at the
beginning of the month.
According to trade officials, on subsidy prohibitions, differences
remain on whether and how to tackle subsidies contributing to IUU
fishing, to overfishing, to overcapacity, and affecting overfished
stocks.
In this regard, proposals vary as to how to determine the existence
of IUU fishing, overfished stocks, overfishing, and overcapacity,
who would make such determinations, and for which waters.
New Zealand submitted a more flexible version of its proposal for
a standstill commitment, such that members would only have to "refrain"
instead of being prohibited from introducing new subsidies that contribute
to overfishing and overcapacity.
According to trade officials, a number of developing countries however
said that they would like to safeguard their policy space to introduce
in the future new subsidies for their fisheries sector.
The Philippines introduced new text proposing that all members claiming
a disputed area would be prohibited from subsidizing fishing activities
there. (See SUNS #8578 dated 20 November 2017.)
The Chair, Ambassador McCook, suggested that members go back to this
at a later stage when they do another read-through of the proposals
on prohibitions.