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TWN Info
Service on WTO and Trade Issues (Nov20/28) Geneva, 25 Nov (D. Ravi Kanth) – The chair of the Doha Rules negotiating body appears to be “bulldozing” members into heads of delegation (HoD) meetings to conclude a “patchy” agreement on fisheries subsidies by the end of next month, in utter disregard for the concerns expressed by developing countries against these meetings due to their inability to enter into technical discussions, said people familiar with the development. At an informal HoD meeting on 20 November, the trade envoys of India and South Africa, and the ACP (Africa, Caribbean, and Pacific) group among others raised several concerns. At that HoD meeting, the trade envoys cautioned about the prospect of steam-rolling members into HoD meetings at a time when they are unable to receive support from their capital-based officials due to the high incidence of COVID-19 cases among some of them, and also due to lack of technical competence to finalize complex disciplines for prohibiting fisheries subsidies (see SUNS #9240 dated 25 November 2020). Yet the chair, Ambassador Santiago Wills of Colombia, has decided to convene a series of HoD meetings starting from 27 November on issues that have huge implications for developing countries. Ambassador Wills sent two separate emails to trade envoys on 24 November. In his first email sent to members, the chair said “as I communicated to you during our meeting on 20 November, I intend to organize the cluster of meetings during the week of 30 November at the level of Heads of Delegation.” “In this regard, I would like to invite you to a meeting at the level of Heads of Delegation plus one to be held all day Tuesday and Wednesday, 1 and 2 December respectively,” the chair said, adding that “I would like you to note that, depending on our progress during these two days, I may also hold a meeting on Friday 4 December also at the HoDs+1 level.” “In addition, the specific questions that I intend to ask during these meetings will be communicated to you later this week,” the chair said. “These meetings will be held virtually because of the current restrictions due to the COVID-19 pandemic,” the chair said. In the second email sent to members on 24 November, Ambassador Wills said “as communicated to you during our meeting on 20 November, I will be holding a meeting with Ambassador Chambovey, as Friend of the Chair, on Friday, 27 November, starting at 10 AM, with the possibility of continuing, as needed, from 3 PM onwards.” “At this meeting,” said Ambassador Wills, “Ambassador (Didier) Chambovey (the Swiss trade envoy) and I will report on our activities since the last cluster and we will hold a discussion on special and differential treatment and the fisheries disciplines we are negotiating.” “For this discussion, Ambassador Chambovey and I would like to focus on the following points: * transition periods; * possible exemptions from the disciplines for developing country Members and least developed country Members; and * possible general provisions that, although applicable to all Members, would take account of the structure of the fishing sector in many developing and least developed country Members. The meeting will be held virtually because of the current restrictions due to the COVID-19 pandemic. The conditions for remote participation (via Interprefy) are the same as those applied to previous meetings of the NGR [Doha Negotiating Group on Rules, whose meetings are held under the rubric of the Doha Development Agenda].” Ambassador Wills has so far not convened any meeting to discuss all the issues in the revised draft consolidated text issued on 2 November. At the informal HoD meeting on 20 November, several trade envoys from developing countries such as India and South Africa, and the ACP group had told the chair in unmistakable terms that they are unable to participate effectively in the virtual negotiations as their capital-based officials are not in a position to guide them due to the COVID-19 cases among them. Further, developing countries clearly cautioned the chair that without resolving all the major issues as well as the technical issues, it is improper to ask heads of delegation to decide on these issues. The chair, however, has now appeared to have disregarded the members’ concerns and is “bulldozing” them into an agreement, said a trade envoy, who asked not to be quoted. At an informal virtual meeting held on 24 November, negotiators discussed several issues concerning remedy violations arising from a future fisheries subsidies agreement, and the likely retaliatory measures, as well as two separate proposals, one tabled by the Philippines involving the issue of territoriality and the second concerning land-locked countries. In its proposal on the issue of territoriality and dispute settlement provisions, the Philippines proposed that an IUU (illegal, unreported and unregulated) fishing determination be upheld even if the violation occurs in disputed waters and that this would thus trigger a subsidy prohibition. “Under this draft provision, a [dispute settlement] panel would not have to address the issue of whether the member making the IUU determination has jurisdiction over those waters,” the Philippines states in document TN/RL/GEN/204 (see SUNS #9234 dated 17 November 2020). China opposed the Philippines’ proposal, saying that maritime jurisdiction is an extremely sensitive issue for them. The WTO mandate is for sustainability and not to settle disputes over maritime jurisdiction, it said. Several other countries that have maritime disputes on fishing rights also opposed the Philippine proposal. Senegal, on behalf of the African Group, said IUU determinations should not be made for waters not in one’s jurisdiction. South Africa, for the ACP group, said that a disputed IUU determination would not be a “final” determination and thus would not come before a WTO panel. Others opposing the Philippine proposal were Argentina, Chinese Taipei, Indonesia, Mauritius, Sri Lanka, and the Russian Federation. As for the draft proposal concerning land-locked countries contained in restricted document RD/TN/RL/130 and issued on 30 October, four members – Afghanistan, Mongolia, Nepal, and Paraguay – proposed that: “[ARTICLE … ] [X.X Nothing in this instrument shall be construed or applied in a manner which will affect the rights of land-locked country Members under public international law.] [X.X Any support extended by any land-locked developing country Members for transit transportation of fish and fish products from and to the sea areas shall not fall under the scope of subsidies within the meaning of this instrument.] ARTICLE 7. TECHNICAL ASSISTANCE, [COOPERATION] AND CAPACITY BUILDING [The developed country Members, and the developing country Members declaring themselves in a position to do so, shall provide targeted technical assistance and capacity building assistance to other developing country Members, including [especially] LDC and land-locked developing country Members, for the purpose of implementation of the disciplines under this [Instrument].] [Coastal States Members shall endeavour to cooperate with land-locked developing country Members in good faith with a view to enabling them to apply their rights to utilize fish stocks and other living resources in the exclusive economic zones of coastal States Members in an equitable manner.]” At the meeting on 24 November, Senegal supported the proposal, arguing that it was a contradiction to allow coastal states to subsidize fishing within their own waters but not allow land-locked countries to subsidize fishing in the high seas. The African Group and several other countries said that the scope of the agreement would not cover subsidies on land, suggesting that there is no need to seek carve-outs for subsidies to transport fish on land. More importantly, South Africa, Argentina, Chinese Taipei, Egypt, Gambia, Pakistan, and Panama cautioned against bringing in issues not in the purview of the negotiations.
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