TWN Info Service on WTO and Trade Issues (Dec20/04)
3 December 2020
Third World Network

Members remain far apart on chair’s questions on IUU fishing
Published in SUNS #9246 dated 3 December 2020

Geneva, 2 Dec (D. Ravi Kanth) – Members remain far apart on the questions raised by the chair of the Doha Rules negotiating body on certain issues concerning prohibitions on subsidies to IUU (illegal, unreported, and unregulated) fishing, including issues concerning the IUU determination and due process, negotiators told the SUNS.

At a heads of delegation (HoD) meeting on 1 December that discussed several unresolved technical issues, a large group of developing countries proposed that effective IUU fishing disciplines must remain in accordance with the rights of entities that are set out in the existing international agreements, said negotiators who asked not to be quoted.

At the meeting, Korea underscored the need to review the HoD+1 configuration to ensure that capital-based officials could participate effectively.

Several countries supported the Korean suggestion, said a negotiator, who asked not to be quoted.

During the day-long meeting, the developing countries proposed specific changes to Articles 3.2 and 3.3 of the revised draft consolidated text that was issued on 2 November.

Prior to the HoD meeting, the chair, Ambassador Santiago Wills of Colombia, posed two questions concerning the proposed language in Articles 3.2 and 3.3 on IUU fishing prohibitions.

The language proposed on Articles 3.2 and 3.3 in the revised draft consolidated text are as follows:

“3.2 For purposes of paragraph 3.1, 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.]

3.3 (a) A determination under paragraph 3.2 refers to the final finding by a Member and/or the final listing by an RFMO/A that a vessel [or operator] has engaged in IUU fishing.

(b) [The prohibition under paragraph 3.1 shall apply where the determination under subparagraphs 3.2 [(a), 3.2(c), and 3.2(e)] is based on positive evidence and follows due process, [in accordance with relevant international law]].

(c) [If the flag State [or subsidizing Member] is known, a Member shall promptly notify the flag State [or subsidizing Member] of the initiation of an IUU investigation [, and provide an opportunity to the flag State [or subsidizing Member] to provide information to be taken into account in the determination.]]”

Given the sharp differences between major subsidizing countries such as China, the European Union, the United States, Japan, Korea, and Chinese Taipei among others on the one side, and the developing and least-developed countries on the other, the chair posed two questions for heads of delegation to answer.

The questions posed by the chair include (i) “under Article 3.2 of the revised draft consolidated document, whether to remove the brackets around subparagraphs (b) (flag State Member), (d) (subsidizing Member), and/or (e) (port State Member), or whether to remove one or more of these entities”, and (ii) whether to remove the brackets around and/or within Article 3.3(b) (with or without textual modifications), or whether to remove the provision.”

During the day-long meeting, the major subsidizing countries, who had introduced their proposals, remained silent at the meeting, according to a participant, who asked not to be quoted.

In contrast, many developing countries, including the ACP (Africa, Caribbean, and Pacific) group, the African Group, and South Africa among others stated unambiguously that while they recognize the importance of effective disciplines for prohibiting subsidies to IUU fishing, it is also important to ensure that the proposed disciplines do not undermine the existing rights in the international agreements, such as the United Nations Convention on the Law of the Sea (UNCLOS).

In its response to the chair’s first question, Jamaica, on behalf of the ACP group, apparently suggested that in international law, flag states are responsible for vessels flying their flag, the participant said.

As regards the hierarchy of options on the entities that can determine the IUU fishing violation in the chair’s draft consolidated text, the ACP group indicated that the determining entities should be linked to the primacy of the coastal states and regional fisheries management organizations, said another participant, who asked not to be quoted.

Further, the ACP group argued that “the issue about Flag States that are not the coastal state or the subsidizing member, in this listing of which determination will be the trigger to prohibit a subsidy to IUU fishing, has nothing to do with whether a Flag State helps enforce coastal state laws.”

The ACP group further noted that “there is no need to create in the WTO a separate determination having double jeopardy impact for purposes of triggering the discipline for the same act of IUU [fishing].”

The ACP group, the largest group of developing and least-developed countries at the WTO, suggested that “the coastal State determination of violations of its laws where a foreign vessel [with] the flag of another State was in contravention while fishing in its sovereign waters, is already a trigger.”

In its intervention, South Africa said IUU fishing poses a “direct and significant threat to effective conservation and management of many fish stocks, causing multiple adverse consequences for fisheries and for the people who depend on them in the pursuit of legitimate livelihoods.”

Effective IUU disciplines “should not trump the rights of entities as defined in existing international treaties and should not give rights that entities currently do not have under existing international treaties,” said South Africa’s trade envoy Ambassador Xolelwa Mlumbi-Peter, according to participants, who preferred not to be quoted.

The South African trade envoy said that the proposed disciplines on fisheries subsidies “under the WTO must preserve or at the least not undermine the rights of coastal states under UNCLOS,” arguing that “UNCLOS recognizes the sovereign rights of the coastal States for the purpose of exploring and exploiting, conserving and managing fishery resources in their EEZs (Exclusive Economic Zones).

More importantly, the IPOA (the UN Food and Agriculture Organization’s International Plan of Action for eliminating IUU fishing) “recognizes the Coastal State and RFMO (Regional Fisheries Management Organization) as the two entities that make determinations on IUU,” Ambassador Xolelwa suggested, arguing that “we therefore do not see a role for a subsidizing State and we propose [its] deletion.”

Responding to the chair’s second question on “whether to remove the brackets around and/or within Article 3.3(b) (with or without textual modifications), or whether to remove the provision,” the ACP group apparently said that “we would not want to subject any determinations made by our national authorities in respect of IUU to any type of scrutiny at the WTO.”

Explaining its position, the ACP group said that the negotiations are aimed at seeking a trigger to activate the discipline on IUU fishing, suggesting that the ACP group is seeking “a trigger to allow Coastal Members where violations have been made in their waters, to qualify for a trigger to activate these disciplines.”

In its response to the second question, South Africa said that the “concern with 3.3 (b) are the implications of another Member, in particular, the subsidizing Member contesting the right of Members of making an IUU determination.”

“This may have the unintended consequence of undermining the effective enforcement of the prohibition on IUU fishing subsidies as it may open grounds for legal review of decisions of a relevant authority on IUU determinations and thus bring into scrutiny the determination itself,” Ambassador Xolelwa said at the meeting.

She said that members’ “ultimate objective should be to safeguard the right of Members to make IUU determinations.”

“The text in 3.3 (b), in our view, is intrusive to the domestic processes, given paragraph 3 of the IPOA-IUU already referred to by Jamaica on behalf of the ACP,” South Africa said.