TWN Info Service on WTO and Trade Issues (Jul19/19) 
15 July 2019
Third World Network

Rules Chair clarifies on status of fisheries texts by facilitators
Published in SUNS #8942 dated 9 July 2019

Geneva, 8 Jul (D. Ravi Kanth) - The Chair of the Doha Rules Group negotiations has clarified that facilitators on the proposed disciplines for fisheries subsidies have been mandated by Heads of Delegations at their meeting on 17 May "to prepare, by the end of July, clean consolidated text as a basis for work after summer break."

Ambassador Roberto Zapata of Mexico, who is chairing the WTO Doha Rules Group negotiations, has given this clarification in an email sent to members on 28 June about the drafts on proposed disciplines on fisheries subsidies issued by the four facilitators.

Ambassador Zapata, who begins on 8 July a crucial round of meetings on fisheries subsidies, has given this clarification in response to concerns raised by several developing countries at the World Trade Organization about the integrity of the drafts prepared by the facilitators.

In his communication, the Chair admitted that "it would appear that there may be some confusion about the current phase of our work and I would like to take this opportunity to explain what we are trying to achieve and why we are trying to achieve it."

Although the negotiating group functions under the Doha work program on fisheries subsidies, the chair chose to remain silent on the term "Doha" in his email titled "negotiating group on rules - fisheries subsidies" sent to members on 28 June.

Without naming members or the ACP (Africa, Caribbean, and Pacific) group that had raised sharp concerns over the texts that are being developed by the facilitators (see SUNS #8927 dated 18 June 2019), the chair reminded members that "the deadline for the negotiations is the end of the year - this is neither my decision or yours, it is an instruction from Heads of Government in SDG 14.6 and Ministers in the Ministerial declaration from MC 11 (the eleventh ministerial conference in Buenos Aires, in December 2017)."

While SDG 14.6 has become the guiding force for concluding the negotiations on fisheries subsidies - with a brand new agreement with comprehensive disciplines by the end of this year - other SDG goals involving food security (SDG goal 2) and elimination of harmful farm subsidies (SDG 12) are rarely mentioned at the WTO.

On fisheries subsidy disciplines, the ACP group and several developing countries had warned against adopting a "top-down" approach by the chair and facilitators.

"Historically in this House texts developed under the responsibility of Chairs become the norm and end up as the basis of negotiations, many times against the wishes of Members," the ACP group had pointed out at the concluding session of the last round of meetings on 14 June.

Against this background, the chair said that members had agreed at a meeting of the heads of delegations on 17 May "to use the facilitators to prepare, by the end of July, clean consolidated text which could be a basis for work after summer break."

"There was no suggestion from anyone that "clean consolidated text" meant a compilation of all negotiating proposals - this is not another streamlining exercise where the objective is to ensure accurate representation of every point of view that might be before the Negotiating Group," the chair asserted in his email.

"The purpose of this exercise," said Ambassador Zapata, "is to represent the current state of play in each area, based on the work thus far this year."

"Where we have new proposed legal language on the table that has garnered certain interest and stimulated constructive discussions and in some cases expressions of support, in the open-ended meetings of the Group and in the facilitator process, the aim is to capture that progress, on which we can continue to explore possibilities to build when we resume our work," he assured members.

On issues where there is less progress, he suggested that there will be further discussions on more "conceptual approaches."

"Where no new bridging proposals have yet been tabled on issues that remain of importance to some members, these issues will be acknowledged in a way that gives full recognition to their importance without simply replicating the many alternatives and bracketed formulations of the W/274 text (negotiating texts in document TN/RL/W/274), as this would render the current exercise pointless, and would even cast doubt on the utility of the very constructive bridging work done so far this year," the chair said.

The first drafts to be issued by the facilitators along with the revised versions of the negotiating text are "meant to be a starting point for constructive discussions in the fall [in September] that hopefully will generate convergence around a single legal text on a given point, or where this is not possible, set up binary options for heads of delegations to consider further," he added.

The starting point documents, he emphasized, "will be entirely without prejudice to any Member's position" and the facilitators will make this point clear by recalling through different means the continuing relevance of the negotiating texts.

The drafts circulated by facilitators "are simply inputs into the negotiations, an attempt to identify where there might be the possibility of building traction around some ideas that have already benefited from the Group's collective work."

"So rest assured, all ideas are still on the table," the chair argued.

"It is past time for each delegation to move out of its comfort zone and to really engage and find compromises with as many other delegations as possible on all of the issues it considers important," he said.

As a follow-up to the chair's email, different facilitators issued their respective drafts from 2 July.

The facilitator Ms Katherine Dellar of Australia, who is tasked with the issue of "overfishing and overcapacity," has issued the first draft on 3 July.

She said, "there remain multiple different approaches in play, with Members yet to agree which approach is most suitable, and most achievable."

The draft includes the controversial proposal by the United States and Australia on capping of fisheries subsidies at the current level.

It is not clear whether the facilitator's draft on "overfishing and overcapacity" includes the ACP group's proposal that was also issued on 2 July.

The ACP group has proposed that "capital and operating cost subsidies to fishing vessels and fishing or fishing activity, provided to large-scale industrial fishing, except (those) provided by developing countries within their exclusive economic zone (EEZ), shall be prohibited."

The facilitator on the issue of overfished stocks, Mr Gustavo Cunha Machala of Brazil, issued his draft on 28 June, stating that "many divergences remain among Members on overfished stocks pillar - there is no agreement yet, for example, on the most basic aspect: the approach for the prohibition."

Another facilitator, Ms Benedict Fleischer from Norway, who is overseeing the proposed disciplines for illegal, unreported, and unregulated (IUU) fishing, said in her draft issued on 3 July, that "discussions have until now especially centered on the IUU definition and on the determination of the IUU-fishing."

After providing her comments on the definition of IUU-fishing, she said that "further discussions are needed regarding proportionality, duration, transparency of determination procedures and of subsidies procedures, as well as special and differential treatment."

"There are both developed and developing Members who question the need to apply S&DT at all to IUU prohibitions," she said.

"Other developing members argue the need for the transition period or an exception of territorial waters (up to 12 nautical miles off the coast), to apply the subsidies prohibition to unregulated and unreported fishing," she said.

India, for example, circulated a comprehensive proposal on 14 June (TN/RL/GEN/200) in which it said, "appropriate and effective Special and Differential treatment for developing countries and LDCs should be an integral part of the WTO fisheries subsidies negotiations" under SDG 14.6.

Under the category of "unreported and unregulated fishing", India proposed that "the prohibition under Article [Z] in respect of unreported and unregulated fishing, shall not apply to subsidies granted/maintained by developing countries including LDCs for:

(a) fishing within their territorial waters; and

(b) fishing in their EEZ (exclusive economic zone) and the high seas for a transition period of [X] years from the date of entry into force of this instrument."

As part of the proposed prohibitions on overfished stocks, India said "the prohibition under Article [Z] in respect of overfished stocks, shall not apply to subsidies granted/maintained by developing countries including LDCs for fishing in their territorial waters."

Further, in respect of fishing within their EEZ, "such Members shall be entitled to a period of [Y] years, to withdraw or modify any subsidy for fish stocks that have been declared as overfished by the national authorities based on the best scientific evidence available to such Members," India had proposed.

On overfishing and overcapacity, India said "the prohibition under Article [Z] in respect of overfishing and overcapacity shall not apply to subsidies granted/maintained by developing countries including LDCs for:

(a) fishing within their territorial waters and their EEZ; and

(b) fishing by vessels in the high seas subject to the applicable fisheries conservation and management measures."

During the last cluster of meetings of the Doha rules group last month, many developed countries severely opposed India's proposal on special and differential treatment for fishermen in developing countries.

At various WTO committee meetings, including the rules negotiating group, the US had said that it will oppose special and differential treatment flexibilities for developing countries like China, India, South Africa, and Indonesia among others under the graduation/differentiation proposal.

The facilitator on "cross-cutting issues", Mr Faisal Saud Sulaiman al-nabhani from Oman, issued a draft paper on 1 July stating that there are different "levels of development" on various elements at this juncture.

In sum, the speed with which a new agreement for prohibiting certain categories of fisheries subsidies is being developed at the World Trade Organization, is absent in other unfinished areas such as trade-distorting farm subsidies and the permanent solution for public stockholding for food security in developing countries, trade envoys said.