TWN Info Service on WTO and Trade Issues (Nov20/17)
17 November 2020
Third World Network

Attempts to finalize “symbolic” agreement on fisheries by year-end
Published in SUNS #9234 dated 17 November 2020

Geneva, 16 Nov (D. Ravi Kanth) – Notwithstanding the worsening COVID-19 pandemic, the chair of the Doha Rules negotiations, Ambassador Santiago Wills from Colombia, appears to have accelerated his attempts to finalize a “symbolic” agreement by the end of the year on disciplines for prohibiting fisheries subsidies, said people familiar with the ongoing negotiations.

Despite substantive differences on major issues involving the IUU (illegal, unreported, and unregulated) fishing, overcapacity and overfishing, and overfished stocks, the chair appears to reckon that it is important to finalize the fisheries subsidies agreement, at least in a symbolic form, by the end of the year, said a person, who asked not to be quoted.

In line with the global leaders’ call on the United Nations Sustainable Development Goal (SDG) 14.6, a symbolic agreement could enhance the image of the WTO that it can deliver on multilateral trade agreements, the person said.

According to the UN SDG 14.6, it was agreed by leaders that “by 2020, (countries would) prohibit certain forms of fisheries subsidies which contribute to overcapacity and overfishing, eliminate subsidies that contribute to illegal, unreported and unregulated fishing and refrain from introducing new such subsidies, recognizing that appropriate and effective special and differential treatment for developing and least developed countries should be an integral part of the World Trade Organization fisheries subsidies negotiation.”

“Failing to conclude the fisheries subsidies agreement in any form could further reinforce the public perception that the WTO remains dysfunctional,” the person said, suggesting that negotiations on most of the substantive issues could be deferred to next year.

A symbolic agreement would cover the basic structure, including definitions, scope of the agreement, and include some language on prohibitions on subsidies for IUU fishing, overcapacity and overfishing (OCOF), and overfished stocks.

However, the substantive issues that are currently bracketed in the revised draft consolidated text issued on 2 November would be negotiated by the WTO’s 12th ministerial conference (MC12) in Nur Sultan (Kazakhstan), in June next year, the person said.

In his email sent to members on 10 November, the chair said that he has lined up inter-sessional meetings up to the next cluster of meetings in December.

“In line with this, I would like to invite interested delegations to a meeting on Wednesday, 18 November, to discuss Article 3.2 of the revised draft consolidated document (RD/TN/RL/126/Rev.1), focusing in particular on the different entities that can make IUU determinations for the purpose of the IUU subsidy discipline.” (See SUNS #9225 dated 4 November 2020).

According to Article 3.2 of the draft consolidated text, “for purposes of paragraph 3.1( which says “no member shall grant or maintain any subsidy to a vessel [or operator] engaged in illegal, unreported or unregulated (IUU) fishing”), a vessel [or operator] shall be considered to be engaged in IUU fishing if a determination thereof is made by any of the following:

(a) a coastal Member, for activities in waters under its jurisdiction; or

(b) [a flag State Member, for activities by vessels flying its flag; or]

(c) a relevant Regional Fisheries Management Organization or Arrangement (RFMO/A), in accordance with the rules and procedures of the RFMO/A, in areas and for species under its competence; or

(d) [a subsidizing Member for activities by vessels it subsidizes; or]

(e) [a port State Member for a vessel that is in one of its ports, provided it acted in cooperation with the flag State and, where appropriate, the coastal State, or acted in a situation where the flag State did not within a reasonable period of time inform the port State of action undertaken in response to alleged IUU fishing by vessels flying its flag when such allegations have been reported to the flag State by the port State concerned.]”

Meanwhile, in a restricted document submitted on 12 November, the Philippines, which is currently involved in a maritime dispute with China, has proposed that for “an IUU determination concerning waters subject to a territorial or maritime dispute between two or more Members shall be considered to be a determination for purposes of Article [X] of this [instrument], provided that it is made by one of the parties involved in that dispute and that it is otherwise in accordance with Article [XX].

“Neither this [instrument] nor any decisions or recommendations of any WTO adjudicatory bodies established under this [instrument] or any other WTO agreement shall have any legal implications or consequences regarding territoriality or the delimitation of maritime jurisdictions.

“For purposes of this [instrument], a territorial or maritime dispute regarding the waters in which the relevant vessel was found to engage in IUU fishing shall be one that is not frivolous and that is properly substantiated under the relevant rules of international law.”

It remains to be seen how several difficult issues in the draft consolidated text, particularly special and differential treatment for developing countries, as well as the proposal by the United States for bringing in stringent transparency and notification requirements, and institutional arrangements and dispute settlement will be resolved, said another person, who asked not to be quoted.

The chair has acknowledged in his email that the meeting on 18 November “will be held virtually because of the current restrictions due to the COVID-19 pandemic.”

In short, hard negotiations for crafting new disciplines for prohibiting fisheries subsidies are being conducted through virtual platforms, and they could result in unhelpful outcomes for developing countries, said people participating in the negotiations.