TWN Info Service on WTO and Trade Issues (Feb21/11)
15 February 2021
Third World Network

Rules chair admits to concerns on lack of work program on fisheries
Published in SUNS #9285 dated 15 February 2021

Geneva, 12 Feb (D. Ravi Kanth) – The chair of the Doha Rules negotiations has agreed with the concerns raised by the developing countries that the lack of a work program for advancing the fisheries subsidies negotiations has created difficulties for members to engage properly in the negotiations, negotiators told the SUNS.

For the past several months, many developing countries, particularly the African Group and the ACP (Africa, Caribbean, and Pacific) Group, have repeatedly complained about the manner in which issues were being arbitrarily taken up by the chair without prior consultations, said a negotiator, who asked not to be quoted.

The developing countries argued that without a proper work program, there is no clarity on the future work and it makes it difficult for negotiators to engage adequately, the negotiator said.

Besides, the chair has posed issues that seem to benefit the big subsidizers who are responsible for the global depletion of fish stocks, the negotiator said.

Responding to the concerns raised by the developing countries, the chair of the Doha Rules negotiations, Ambassador Santiago Wills from Colombia, has admitted for the first time that, “I do agree that it is important for delegations to have as much clarity as possible on our future work so that their delegates can prepare adequately.”

In an email sent to members on 9 February, and obtained by the SUNS, the chair said that “this is also important on my side for arranging logistics for our meetings, such as reserving rooms and virtual platforms, and securing interpretation services. In this regard, I have noted Members’ indication that clusters of meetings have been useful for keeping our work transparent and inclusive.”

The chair intends to convene the February cluster of meetings from Monday (15 February) on disciplines concerning overcapacity and overfishing (OCOF) that have resulted in industrial-scale fishing and depletion of global fish stocks.

Before discussing the provisions relating to OCOF in the second revised draft consolidated text that was issued on 18 December last year (see SUNS #9260 dated 23 December 2020), the chair wants to hold a meeting along with the Swiss ambassador Didier Chambovey, the “friend of the chair”, to discuss special and differential treatment (S&DT) for developing countries in the OCOF disciplines, said another negotiator, who asked not to be quoted.

Attempts to seek a trade-off between effective special and differential treatment flexibilities and allowing the big subsidizers to continue with their industrial-scale fishing in the proposed new disciplines will be strongly opposed, the negotiator said.

“These negotiations are about safeguarding sustainability, curbing major subsidizers from engaging in industrial- scale fishing, and ensuring that polluters pay a down payment for the damage they have caused in the depletion of global fish stocks, in the proposed OCOF disciplines,” said a trade envoy, who asked not to be quoted.

In his email sent to trade envoys on 4 February, the chair has announced the schedule of meetings beginning on 15 February.

The chair has reserved Monday (15 February) and Thursday (18 February), as well as Friday morning (19 February) for bilateral or other meetings, including small group meetings.

On the morning of 16 February, the chair will convene an informal open-ended meeting along with Ambassador Didier Chambovey from Switzerland, who is a “friend of the chair”, to discuss special and differential treatment (S&DT), particularly focusing on transitional mechanisms envisaged under Article 5.7 (c).

The proposed language in Article 5.7 (c) in the second revised draft text is as follows:

[ALT 1 The prohibition under paragraph 5.1 shall apply to subsidies granted or maintained by developing country Members including LDC Members, for fishing or fishing related activities within their EEZ (exclusive economic zone) and the area of competence of RFMO/A (regional fisheries management organization/ arrangement) if all the following criteria are met:

i. the Member’s GNI (gross national income) per capita exceeds US$5,000 (based on constant 2010 US dollars) for three consecutive years;

ii. the Member’s share of the annual global marine capture fish production exceeds 2% as per the most recent published FAO data;

iii. the Member engages in distant water fishing; and

iv. the contribution from Agriculture, Forestry and Fishing to the Member’s annual national GDP is less than 10% for the most recent three consecutive years.]

[ALT 2 OTHER FORMS OF TRANSITIONAL MECHANISM]

During the afternoon of 16 February, the chair will convene an informal open-ended meeting focused on questions related to the standard of review in the context of dispute settlement under the fisheries subsidies disciplines.

Among the issues to be discussed are whether, and if so, how Members’ IUU (illegal, unreported, and unregulated) fishing determinations and stock assessments would be reviewable in a dispute under the relevant pillars of the disciplines.

On Wednesday, 17 February, the chair said that he would hold discussions on the core architecture of the overcapacity and overfishing pillar in the second revised draft consolidated text (Articles 5.1, 5.2, and 5.3).

Articles 5.1, 5.2, and 5.3 in the second revised draft text are as follows:

5.1 No Member shall grant or maintain subsidies to fishing or fishing related activities that contribute to overcapacity or overfishing.

5.1.1 For the purpose of paragraph 5.1, subsidies that contribute to overcapacity or overfishing [include]:

(a) subsidies to construction, acquisition, modernization, renovation or upgrading of vessels;

(b) subsidies to the purchase of machines and equipment for vessels (including fishing gear and engine, fish- processing machinery, fish-finding technology, refrigerators, or machinery for sorting or cleaning fish);

(c) subsidies to the purchase/costs of fuel, ice, or bait;

(d) subsidies to costs of personnel, social charges, or insurance;

(e) income support of vessels or operators or the workers they employ;

(f) price support of fish caught;

(g) subsidies to at-sea support; and

(h) subsidies covering operating losses of vessels or fishing or fishing related activities.

5.2. Notwithstanding paragraph 5.1, a Member may grant or maintain subsidies referred to in paragraph 5.1 if it demonstrates that measures are implemented to maintain the stock or stocks in the relevant fishery or fisheries at a biologically sustainable level.

5.3 No Member shall grant or maintain subsidies:

(a) contingent upon, or tied to actual or anticipated fishing or fishing related activities at sea in areas beyond the subsidizing Member’s jurisdiction (whether solely or as one of several other conditions), including subsidies provided to support at-sea fish-processing operations or facilities, such as for refrigerator fish cargo vessels, and subsidies to support tankers that refuel fishing vessels at sea;

(b) provided to fishing or fishing related activities outside of the jurisdiction of a coastal Member and outside the competence of a relevant RFMO/A.

5.3.1 With respect to sub-paragraph 5.3 (a), the mere fact that a subsidy is granted or maintained to vessels or operators that may be engaged in fishing or fishing-related activities in areas beyond the subsidizing Member’s jurisdiction shall not for that reason alone be considered a prohibited subsidy within the meaning of sub- paragraph 5.3 (a).

5.3.2 [PLACEHOLDER – NON-RECOVERY OF PAYMENTS UNDER GOVERNMENT-TO-GOVERNMENT ACCESS AGREEMENTS]

On the afternoon of 19 February, the chair said he will convene an open-ended meeting at the level of HoD+1.

“In this meeting, Ambassador Chambovey and I plan to report back to the Heads of Delegation [HoD] on the work undertaken since the January cluster of meetings,” the chair said.

Commenting on the schedule of meetings, a negotiator said, “I don’t know whether this cluster is worth the paper it is written on because in the end we are not getting to any consensus. And we are once again against having general discussions about what is the architecture of Article 5.”

That discussion was already held a long time ago and having it again implies that “we have not made any progress till now and members fundamentally disagree on many aspects of the text,” the negotiator said.

“And what makes it worse is how can you talk about dispute settlement when you don’t know the core disciplines. Only if you know the disciplines, then only should dispute settlement provisions be discussed,” the negotiator said.

Members remain far apart on most of the issues in the second revised draft text and it remains to be seen whether there would be any agreement soon, the negotiator said.