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TWN
Info Service on WTO and Trade Issues (Jan21/09) Geneva, 25 Jan (D. Ravi Kanth) – Many developing countries at the World Trade Organization (WTO) have called for an exception or carve-out for artisanal fishing from the proposed disciplines in the Doha fisheries subsidies agreement, as well as sharply opposed attempts to bring non-violation complaints (NVCs) into the new agreement that aims to safeguard global sustainability concerns, trade envoys told the SUNS. At the completion of the first cluster of meetings at the WTO this year on fisheries subsidies on 19-22 January, the developing countries – India, South Africa, Mauritius on behalf of the African Group, Jamaica on behalf of the ACP (Africa, Caribbean, and Pacific) group, and the least-developed countries (LDCs) – drew markers on the second revised draft consolidated text issued by the chair of the Doha Rules negotiations last month, trade envoys said. The chair’s second revised draft text failed to include the core concerns raised by the developing countries on the proposed disciplines for tackling IUU (illegal, unreported, and unregulated) fishing, overcapacity and overfishing, and depletion of fish stocks, said a trade envoy, who asked not to be quoted. Members also raised serious concerns about their effective participation in the negotiations due to the worsening COVID-19 pandemic, suggesting that it is important to schedule meetings by taking into consideration the difficulties posed by the pandemic on capital-based negotiators, the trade envoy said. More importantly, members urged the chair to come out with a coherent work program instead of apparently jumping arbitrarily from one issue to the other like proverbial “crazy chickens”, said a participant, who asked not to be quoted. In his introductory statement at the heads of delegation (HoD) meeting on 22 January, the chair of the Doha Rules negotiations, Ambassador Santiago Wills from Colombia, said that the meetings on the issues slated for discussion are a “warming-up” exercise, said a participant, who asked not to be quoted. The United States, however, did not make any interventions on the issues slated for discussion during the cluster of meetings due to the recent change of administration in Washington. The US made it clear that it will not intervene on issues such as artisanal fishing and non-violation complaints (NVCs), suggesting that its positions on some of the issues are well-known, the participant said. The chair wanted members to discuss: (1) dispute settlement in the fisheries subsidies agreement, particularly about the issue of non-violation complaints in the new agreement and how they would be treated by the panels; (2) disciplines concerning artisanal fishing involving resource-poor, low-income fishermen who survive for their livelihood on fishing; and (3) special and differential treatment (S&DT) among others. As regards the issue of non-violation complaints (NVCs), a large majority of developing countries opposed the inclusion of NVCs in the proposed agreement. However, the proponents of NVCs such as Australia among others sought to include the NVCs in the proposed agreement, said another negotiator, who preferred not to be quoted. At issue is whether NVCs, which was raised by Chinese Taipei, should be included in the final fisheries subsidies agreement and can be raised by members before the dispute settlement panels. Chinese Taipei and many other developing countries unambiguously opposed the application of NVCs, as was the case with this issue vis-a-vis the TRIPS Agreement, saying that it is primarily a sustainability issue and not a market issue, the negotiator said. In its intervention on the NVCs, Mauritius, on behalf of the African Group, said categorically that it will not “support the application of non-violation complaints in the context of fisheries subsidies disciplines.” The African Group said that “first, as many Delegations stated during our discussions on Tuesday (19 January), the African Group does not support the application of non-violation complaints in the context of the fisheries subsidies disciplines.” The Mauritian trade envoy Ambassador Usha Chandnee Dwaraka-Canbady said that the African Group “remains flexible on language and options that can effectively translate that position in the draft text. We take note of proposals already submitted by members and groups of members and will work constructively with those delegations on this matter.” Commenting on the issue of NVCs, South Africa said that “since our negotiations on fisheries subsidies does not deal with market access but sustainability, we find it difficult to see how claims of non-violation are relevant.” The South African trade envoy Ambassador Xolelwa Mlumbi-Peter argued that “the NVCs should remain an exceptional remedy that cannot be applied to each and every WTO Agreement given its nature.” Many members have indicated “the difficulty to entertain these types of claims,” South Africa said. The NVCs deal with any benefits accruing to a member directly or indirectly being nullified or impaired or impeded in market access for goods and services as per Article XXII of GATT and can be challenged before a dispute settlement panel. Ambassador Xolelwa made it clear during her intervention on 22 January that “necessarily explicit language making non-violation claim inapplicable to any outcome we negotiate is desirable.” She said “since our negotiations on fisheries subsidies does not deal with market access at all but sustainability, we find it difficult to see how claims of the non-violation are relevant.” India also opposed any attempt to include NVCs in the fisheries subsidies agreement, the negotiator said. On the discussion concerning the language on flag states as an entity to make IUU (illegal, unreported, and unregulated) fishing determination, and also on whether a fish stock is being maintained at a “biologically sustainable level”, as well as the need to be exempted from the prohibition on capacity-building subsidies, members remained far apart, said negotiators. South Africa told the chair that the removal of brackets around flag states (which are countries in which a vessel is registered and states having exclusive legislative and enforcement authority over that ship on the high seas) “without the necessary convergence or consensus” was incorrect. South Africa asked the chair to re-insert the brackets around flag states, expressing concern over the impact “this may have on the rights of coastal states, but also to what extent this removal many open the way for removal of brackets around other determining entities listed under Article 3.2.” In the second revised draft text issued on 18 December 2020, the language proposed in Article 3.2 states that “for purposes of paragraph 3.1, a vessel [or operator] shall be considered to be engaged in IUU fishing if an affirmative determination thereof is made by any of the following: (i) a coastal Member, for activities in waters under its jurisdiction; or (ii) a flag State Member, for activities by vessels flying its flag; or (iii) 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 (iv) [a subsidizing Member for activities by vessels it subsidizes; or] (v) [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.]” During the sharp discussions on the horizontal carve-out needed for artisanal fishing and fishermen that depend for their survival on fishing, the developing countries said that the carve-out for artisanal fishing should not be merged with any special and differential treatment flexibilities. Commenting on the carve-out for artisanal fishing, the Mauritian trade envoy Ambassador Usha Chandnee Dwaraka-Canbady said that “this sector, which is more sustainable but vulnerable due to unfair competition by large industrial fishing fuelled by government subsidies, should not be subject to the disciplines.” The ACP group said “we would prefer a scope carve-out for artisanal and small-scale fishing,” while South Africa said “it is important to provide the necessary flexibilities to member states by excluding the small-scale fishing from the scope of our negotiations.” Ambassador Xolelwa Mlumbi-Peter said “my delegation once again wants to emphasize the important role that small-scale artisanal fisheries play in securing livelihoods and food security for coastal communities.” She said that “it is therefore important to provide the necessary flexibilities to member states by excluding the small-scale fishing from the scope of our negotiations.” The South African trade envoy said “this must be a general exception and not treated as S&D as it would be applicable to all Members.” “The focus of the disciplines should be on large-scale industrial fishing and the devastating impact of fisheries subsidies that enable such fleets to deplete fishing stocks,” Ambassador Xolelwa cautioned. “If the problem of overfishing and overcapacity is to be solved, we need look no further than subsidies that enable distant water fleets to deplete our common resources,” she said. On the disciplines concerning overcapacity and overfishing in Article 5 of the second revised draft text, South Africa said “regarding Article 5.2 and the changes in footnote 13, we are not convinced that 5.2 is needed given the clear list-based prohibition in Article 5.1.” Further, “the introduction of the sustainability flexibility complicates negotiations in delivering on the mandate,” Ambassador Xolelwa said. South Africa also expressed concern about the changes proposed on special and differential treatment flexibilities, emphasizing that any attempt to limit S&D to transition periods and capacity-building will not assist in facilitating the conclusion of this negotiation. “We reiterate that effective S&D has to be an integral part of this negotiation. S&D must enable developing countries to develop their fisheries sector and to exploit their resources in a sustainable manner,” South Africa said. Many members called for a clear roadmap and the sequencing of issues based on a clear methodology. “In order to establish clear priorities, we need a roadmap setting out our work over the course of the next semester in order to have clear outcomes by MC12 (WTO’s 12th ministerial conference this year),” Ambassador Xolelwa said. She said that members know “where the bottlenecks are and which issues should be prioritised,” emphasizing that “a clear and comprehensive work plan would enable delegations to plan their activities, in conjunction with capitals, to ensure that the relevant authorities are present in such meetings.” She argued that the “COVID-19 continues to present substantial problems to all of us, however, having a clear road map will substantially alleviate many of the practical and logistical issues that many of us face.” She said that “the process must be open, transparent and inclusive so as to come up with balanced outcomes. It should also allow sufficient time to consult capitals to get a mandate, as well as coordinate within our various groupings.” The chair is planning to hold a meeting on 4 February to discuss issues concerning the roadmap, said a participant who asked not to be quoted.
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