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.