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TWN
Info Service on WTO and Trade Issues (Aug21/03) Geneva, 3 Aug (D. Ravi Kanth) – The chair of the Doha fisheries subsidies negotiations, Ambassador Santiago Wills from Colombia, has suggested a two-stage work program between September to November following the statements made by trade ministers at the 15 July ministerial meeting, signaling an apparent “course correction” to make the re-revised draft fisheries text appear more “palatable”, said trade envoys familiar with the development. In an email sent to members on 30 July, the chair said the first stage will begin on 1 September when he would start by holding consultations in various formats. He said that the period from 1 September to the Jeune Genevois public holidays (9-10 September) “will be an opportunity for me to reach out to delegations, for delegations to reach out to me and for delegations to engage with each other.” The chair plans to dedicate the period from 13 September to 8 October “to intensive text-based negotiations on key macro issues; that is, substantive issues on which views remain divergent.” However, he did not specify what would constitute the “substantive issues” in his email. “The objective of this stage,” said Ambassador Wills, “is to work together to evolve the draft text such that it can serve as a basis for the second stage of the process.” He clarified that “the aim must be to adjust the existing draft text by adding to it, deleting from it, or amending it so the result can be a text that is as clean and clear as possible with as few brackets as possible.” “This means collectively improving the text by making it more convergent in these critical areas,” he added, with a caveat that “it does not mean creating lists of each Member’s preferred language, a process that we left behind three years ago and to which we cannot return if we are to conclude our work this fall.” He insisted that “this stage of work is efficient, the approach to the issues to be addressed needs to be flexible and capable of adapting as the work progresses.” Effectively, the chair has suggested that there would not be wholesale changes in the draft consolidated text (TN/RL/W/276/Rev.1). Surprisingly, he claimed that “as such, there is no exhaustive or definitive list of all issues to be taken up during this stage. That said, based on the views from Ministers on 15 July, and from HoDs [Heads of Delegation] thereafter, I would suggest that our work include the following issues.” The issues mentioned by the chair include: 1. The issue of balance, particularly in the overcapacity and overfishing pillar with respect to Articles 5.1.1 (including footnote 10) and 5.5 of the draft text in TN/RL/W/276/Rev.1, and related transparency and notification requirements in Article 8.4; 2. The disciplines on subsidies to fishing in areas beyond the subsidizing Member’s jurisdiction and in high seas, in Articles 5.2 and 5.3 of the draft text respectively; 3. The issue of automaticity of the subsidy prohibition in the illegal, unreported and unregulated fishing pillar; 4. Transparency and notification requirements in Article 8.4, including those related to special and differential treatment; and 5. Elements previously discussed that are not currently reflected in the draft text. On the first issue, the chair seems to have admitted for the first time that the specific carve-out that he mentioned in Article 5.1.1 for the ten large industrial-scale fishing countries like China, the European Union, the United States, Japan, and Korea among others that was opposed by many trade ministers at the 15 July ministerial meeting, will now be balanced with Article 5.5 concerning special and differential treatment (S&DT). Clearly, the chair seems to be suggesting a measure of balance between the subsidy carve-out for the ten big subsidizers, who have created the problem of over-capacity and over-fishing as well as the depletion of fish stocks globally, and the special and differential treatment for developing and least-developed countries who did not in any way contribute to the depletion of global fish stocks, said people who asked not to be quoted. And worse still, the chair has linked the S&DT provisions with onerous transparency and notification requirements in Article 8.4, said people, who asked not to be quoted. According to Article 5.1.1 in the revised draft text issued on 30 June, “a subsidy is not inconsistent with Article 5.1 (where all prohibited subsidies are listed) if the subsidizing Member demonstrates that measures are implemented to maintain the stock or stocks in the relevant fishery or fisheries at a biologically sustainable level.” The chair further clarified what would constitute a “biologically sustainable level” in footnote 10. In contrast, Article 5.5 concerning the special and differential treatment includes the following two alternatives. They include: [ALT 1 5.5 (a) The prohibition under Article 5.1 shall not apply to subsidies granted or maintained by LDC Members for fishing or fishing related activities. (b) The prohibition under Article 5.1 shall not apply to subsidies granted or maintained by developing country Members for fishing or fishing related activities within their territorial sea. (c) The prohibition under Article 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 and the area of competence of RFMO/A if all the following criteria are met: i. the Member’s GNI per capita exceeds US$5,000 (based on constant 2010 US dollars) for three consecutive years; ii. the Member’s share of the annual global marine capture fish production exceeds 2% as per the most recent published FAO data; iii. the Member engages in distant water fishing; and iv. the contribution from Agriculture, Forestry and Fishing to the Member’s annual national GDP is less than 10% for the most recent three consecutive years.] Alternative 2 drastically limits the special and differential treatment by suggesting various conditions, and limits the S&DT to five years. They include: (a) The prohibition under Article 5.1 shall not apply to subsidies granted or maintained by LDC Members for fishing or fishing related activities. (b) The prohibition under Article 5.1 shall not apply to subsidies granted or maintained by developing country Members for low income, resource-poor and livelihood fishing or fishing related activities up to 12 nautical miles measured from the baselines. (c) For subsidies other than those referred to in sub-paragraph (b), a developing country Member may grant or maintain the subsidies referred to in Article 5.1 for fishing and fishing related activities within its EEZ and the area of competence of a relevant RFMO/A for a maximum of [5] years after the entry into force of this [Instrument]. A developing country Member intending to invoke this provision shall inform the [Committee] in writing before the date of entry into force of this [Instrument]. (d) If a developing country Member whose: i. share of the annual global volume marine capture fish production does not exceed [0.7%] as per the most recent published FAO data; and ii. subsidies to fishing or fishing related activities at sea do not exceed US$[25 million] annually deems it necessary to apply subsidies referred to in sub-paragraph (c) beyond the [5] years provided for in that sub-paragraph, it shall not later than one year before the expiry of the applicable period enter into consultation with the [Committee], which will determine whether an extension of this period is justified, after examining all the relevant needs of the developing country Member in question. If the [Committee] determines that the extension is justified, the developing country Member concerned shall hold annual consultations with the [Committee] to determine the necessity of maintaining the subsidies. If no such determination is made by the [Committee], the developing country Member shall phase out the remaining subsidies prohibited under Article 5.1 within two years from the end of the last authorized period. Ambassador Wills also suggested Article 5.2 that states: (a) No Member shall grant or maintain subsidies contingent upon, or tied to, actual or anticipated fishing or fishing related activities 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. (This is clearly directed against China). (b) Sub-paragraph (a) shall not apply to the non-collection from operators or vessels of government-to-government payments under agreements and other arrangements with coastal Members for access to the surplus of the total allowable catch of the living resources in waters under their jurisdiction, provided that the requirements under Article 5.1.1 are met. (It appears to be a carve-out for the EU). The chair said that his “list is not meant to be definitive or exhaustive, but is set forth here just to assist your planning.” The chair said that his “plan in the first stage is to work in different configurations and formats, with different groups of Members depending on the issue.” “To ensure inclusiveness and transparency,” the chair said he also plans “to hold regular open-ended meetings – once or twice per week – to report on the work that is taking place in other formats and for exchanges of views on the issues.” He emphasized that “the structured work in the Negotiating Group during the first stage is not the only, nor necessarily the most important, work that should be undertaken during this period.” Acknowledging that “these negotiations must be Member-led,” he said, “I would underline that this is not only a right but also an obligation; and this depends on all of you reaching out to your counterparts, particularly those that do not share your views, to identify ways to bring your positions closer together.” “This will be an essential complement to the work done in and by the Negotiating Group as such. Of course, if it would be helpful, I am ready to facilitate or observe any meetings that any delegation may organize with others.” As regards the second stage during the three weeks beginning on 11 October and ending on 29 October, the chair has suggested that members “meet in open-ended format every day to go through the entire draft text clause-by- clause.” According to Ambassador Wills, “the objective, as affirmed by Ministers on 15 July, will be to produce a fully- agreed clean text, ahead of MC12.” “This will be an intensive and, no doubt at times uncomfortable, process as we will need to cover every article of the draft text from the legal, political and technical perspectives as we seek to resolve all of the remaining issues,” he maintained. He said “all of the work during both stages will be at the HoDs level to ensure that those with the authority to make decisions are present in the meeting room,” suggesting that “at the same time, I am aware that HoDs may need technical support from their experts and/or capital-based officials, and I will bear this in mind in organizing the meetings.” In a nutshell, Ambassador Wills has set out an ambitious but somewhat ambiguous work program. It remains to be seen whether the final text will adequately reflect the concerns of the developing countries in the run-up to MC12, said people, who asked not to be quoted.
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