TWN Info Service on WTO and Trade Issues (Jun20/24)
29 June 2020
Third World Network

Rules Chair issues draft consolidated text on fisheries subsidies
Published in SUNS #9148 dated 29 June 2020

Geneva, 26 Jun (D. Ravi Kanth) – The chair of the Doha rules negotiations has issued a draft consolidated text for expediting the negotiations on disciplines on IUU (illegal, unreported, and unregulated) fishing, overfished stocks, and overfishing and overcapacity.

At a heads of delegation (HoD) meeting on 25 June, conducted in both physical and virtual formats, the chair, Ambassador Santiago Wills of Colombia, said that he wants to conclude an agreement by the end of this year on the proposed disciplines on IUU fishing, overfished stocks, and overfishing and overcapacity, as set out in his consolidated draft text, trade envoys told the SUNS.

The chair said that the draft text has been prepared under his own responsibility.

Surprisingly, Ambassador Wills appears to have not factored in the rising wave of the Covid-19 cases in the Americas, Africa, and South Asia, where lockdown conditions are being implemented. The current resurgence of the Covid-19 could make it almost impossible for capital-based officials to participate in the negotiations, said trade envoys, who asked not to be quoted.

The Chair issued two restricted and “confidential” draft texts – RD/TN/RL/126/Add.1 and RD/TN/RL/126. He made several preliminary remarks on the elements contained in the draft consolidated text.

Ambassador Wills suggested that he has included language from India’s comprehensive proposal while omitting the proposals from the ACP Group, the African Group, and the least-developed countries (LDCs), said a trade envoy, who asked not to be quoted.

In his preliminary remarks about the draft consolidated text, the chair said that “this draft, as with our discussions generally in this room, is confidential and I would appreciate it if everyone would respect this.”

“To be clear though”, the chair said, it “does not mean that this draft is a simple copy-and-paste of different texts.”

“In putting together the different drafts into a single text; there were areas that needed to be adjusted in order to make the draft as consistent and coherent as possible,” he argued.

The chair introduced “differentiation” for availing special and differential treatment (S&DT) among developing countries in the disciplines for overcapacity and overfishing, the trade envoy said.

However, the chair has not mentioned the term special and differential treatment in the draft consolidated text even though it was clearly spelt out in the United Nations Sustainable Development Goal 14.6, said another trade envoy, who asked not to be quoted.

The text seems to be tilted in favour of countries such as China, the United States, the European Union, Japan, and Korea among others, whose industrial-scale fishing had caused the global depletion of fish stocks, the trade envoy said.

The chair highlighted the “main ones (issues) of adjustment that was done from the facilitators’ draft texts and members’ proposals”.

They include:

* The chair said his “draft leaves open the question of whether the fisheries subsidies disciplines should be a standalone Agreement or an Annex to the SCM Agreement.”

He acknowledged that there is no consensus on this issue yet. “For this reason, this draft refers generically to the “Instrument”, in brackets throughout, as a reminder to insert the precise term once this issue is resolved,” Ambassador Wills argued.

* The chair said he wants to be clear that his draft is without prejudice to any Member’s positions or views on any issue, whether reflected in the draft or not.

“As I mentioned before, what I have tried to do is to present a basic consolidation of legal drafting that has been under discussion for some time, and around some – although not all – of which a degree of convergence has been expressed. The idea is that this draft can be the jumping off point for the text-based negotiations phase.”

* The Chair asked members to consider “this draft text and everything in it as being in square brackets, as I am fully aware that nothing here is agreed. That said, there are degrees of disagreement”, acknowledging that “in some cases, there may be emerging consensus.”

* “In other areas (which he did not specify), there are binary choices between proposed alternatives, or between having something in the text to address an issue versus not addressing that issue,” he said.

* Further, the chair said “in some areas we have several Members that favour one concept for disciplines, but these Members have different ideas how to apply the concept.”

Ambassador Wills further clarified that he has “used many square brackets within the text; please note that these serve different purposes in different areas.”

He said “in some cases, such as around the word “Instrument”, the brackets highlight a phrase or word that will need to be changed depending on the final outcome.”

There are also “two or more clear alternatives each within its own set of brackets,” the chair said, suggesting that “in other areas brackets highlight a text which could be deleted, amended or replaced but at this stage it was not clear to me what are the alternatives. In some ways these could be treated as elaborated placeholders for future work.”

“Finally, the bracketing of some provisions signifies that those provisions come from a specific proposal and have not yet been thoroughly discussed, either in plenary meetings or in a facilitator’s process; or the bracketing reflects a previously-reached understanding to place certain text in brackets about which there was a diversity of views for a decision at a later stage in the negotiations,” the chair said.

“Again, please treat the entire document and every phrase in it as though it were bracketed and could be changed,” he emphasized.

In the outline of the elements contained in the draft text, the Chair said that the draft consists of five parts:

“In the first, we have the scope and definitions, which are cross-cutting elements that give meaning to the disciplines; (But some members said the definitions of the scope in several disciplines are vague and cannot be accepted).”

“The next three parts are the three core pillars – IUU fishing, overfished stocks, and overcapacity and overfishing – including pillar-specific draft provisions on special and differential treatment (SDT); (But in the actual draft text there is no mention of SDT and see the draft text below).”

“The last part consists of other cross-cutting elements, such as notifications and dispute settlement, although they are for the most part simple placeholders for the moment.”

After making his preliminary remarks, the chair almost abruptly closed the meeting, even though members came prepared to make some initial comments, said a trade envoy, who asked not to be quoted.

Commenting on the chair’s draft consolidated text, trade envoys said that the language on overfishing and overcapacity is basically the same as compared to his earlier draft in February that was rejected by members.

He added language on overfishing and overcapacity which is basically the same, while excluding the language proposed by the ACP (Africa, Caribbean, and Pacific) group, said a trade envoy, who asked not to be quoted.

The chair behaved like a “king maker” in choosing some proposals from members and discarding those ones depending on his overall scheme of things, the trade envoy said.

“The consolidated draft text advances the differentiation narrative in negotiations and it is a proxy for future negotiations,” the trade envoy added.

According to the trade envoy, “there are a lot of problems on the scope definitions in the draft consolidated text,” as there is no clarity on whether members define subsidies as specific subsidies or horizontal subsidies.

The text also does not include any language on several institutional issues, particularly the dispute settlement mechanism for disputes that are likely to arise from these disciplines, the trade envoy said.

More worryingly, the chair’s intent to expedite negotiations in order to reach an agreement by the end of the year without taking into consideration the worsening Covid-19 pandemic in developing countries does not augur well, as capital-based officials will find it difficult to participate, the trade envoy suggested.