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Info Service on WTO and Trade Issues (Mar23/08) Geneva, 27 Mar (D. Ravi Kanth) — Many developing and least-developed countries apparently brought to the center-stage of the Doha fisheries subsidies negotiations at the World Trade Organization on 24 March issues like the principle of common but differentiated responsibilities (CBDR), “reverse” special and differential treatment (S&DT) allegedly accorded to big subsidizers in the overcapacity and overfishing pillar, as well as the polluter-pays principle, said people familiar with the discussions. Aside from these issues, India, Pakistan, Vietnam, and several other countries seem to have raised various other difficult issues such as non-specific fuel subsidies, on the need to follow the controversial hybrid (list and effects) approach, the likely deleterious effects of fisheries management, and fishing rights that were allegedly given a “kid-glove” treatment by the previous chair of the negotiations, Ambassador Santiago Wills of Colombia. Ambassador Wills was appointed as the director of the WTO’s Council and Trade Negotiations Committee Division last year. At the end of the first week of the Doha fisheries subsidies negotiations, which is part of the Doha Rules negotiations, on 24 March, the present chair, Ambassador Einar Gunnarsson of Iceland, said “I think it was a very successful first Fish Week.” “It has been illuminating to listen to members. I noticed members’ positive spirit and the willingness to understand each other,” the chair said. He added that the discussions were centered on several issues, suggesting that “as the next logical step, I see our second Fish Week in (25-28) April as the beginning of our discussions of how to get to the result we want.” The discussions highlighted how members approached the disciplines set out in the draft text issued by the previous chair Ambassador Wills in the most controversial and critical area of overcapacity and overfishing (OC&OF), said people who spoke to the SUNS. Ahead of the meeting, Ambassador Gunnarsson posed several questions to members. He urged members to share their views on the following questions:
In response to these questions, several members seem to have shared somewhat diametrically opposing views. Apparently, Vietnam, Pakistan, and several other countries suggested the need to reopen the Fisheries Subsidies Agreement due to asymmetries in light of the proposed BBNJ (marine biological diversity of areas beyond national jurisdiction) treaty under the UN Convention on the Law of the Sea, said people familiar with the discussions. The chair, however, ruled out the issue of reopening the previous draft texts such as WT/MIN(21)/W/5 and WT/MIN(22)/W/20, as presented by the former chair. S&DT, “REVERSE” S&DT & CBDR During the meetings, Norway, Australia, and the other big subsidizers apparently sought to justify the special and differential treatment proposals crafted by the previous chair on grounds that they are premised on sustainable special and differential treatment. In sharp contrast, India pointed out that “reverse” S&DT is being granted to the big subsidizers in Article 5.1.1 of the draft text on OC&OF, provided they could demonstrate that “measures are implemented to maintain the stock or stocks in the relevant fisheries.” In addition, footnote 11 to Article 5.1.1 states: “For the purpose of this paragraph, a biologically sustainable level is the level determined by a coastal Member having jurisdiction over the area where the fishing or fishing related activity is taking place, using reference points such as maximum sustainable yield (MSY) or other reference points, commensurate with the data available for the fishery; or by a relevant RFMO/A (regional fisheries management organization/arrangement) in areas and for species under its competence.” India, Pakistan, and several other developing countries seem to have challenged the competence of the WTO to enter into a new area of regional fisheries management organization (RFMO). They also suggested that the WTO should not enter into areas that fall under the ambit of the United Nations Food and Agriculture Organization (FAO) based in Rome. Many developing and least-developed countries also raised the issue of attempts by the major industrialized countries to bring the issue of market access into the discussions by proposing monetary and flexible transition periods. Norway and the United Kingdom seemed to have suggested the above inducements, said people familiar with the discussions. The developing countries also insisted that the principle of common but differentiated responsibilities (CBDR) must anchor the S&DT provisions, said people, who asked not to be quoted. NON-SPECIFIC FUEL SUBSIDIES India and a few other countries raised the unresolved issue of non-specific fuel subsidies that are allegedly being provided by the big subsidizers to their large fishing fleets. India had demanded that the issue be included in the scope of the Fisheries Subsidies Agreement but the previous chair had excluded it in the draft text (WT/MIN(22)/W/20) issued on 10 June 2022. The chair, Ambassador Wills, had merely said, in the scope of the draft text, that the Fisheries Subsidies Agreement only “applies to subsidies within the meaning of Article 1.1 of the Agreement on Subsidies and Countervailing Measures (SCM Agreement) that are specific within the meaning of Article 2 of that Agreement, to marine wild capture fishing and fishing related activities at sea.” Ambassador Wills excluded non-specific fuel subsidies in his draft text, saying that “while the proposed Article 1.2 in the scope has appeared in the previous draft texts, it was clear that neither including this provision nor staying silent on non-specific fuel subsidies was attracting convergence.” “As an attempt to bridge this gulf in positions,” the former chair said, “some Members began to suggest that including transparency provisions in respect of non-specific fuel subsidies could be a possible compromise. Reflecting the interest in this sort of solution, Article 8.1bis was introduced in the previous draft. At the time, it was recognized that both the content and the placement of such a provision would need further work and reflection by Members.” According to the former chair, “a group of Members with different and somewhat opposed views on this issue had worked together to elaborate a text for transparency in respect of non-specific fuel subsidies around which all of them could converge. These Members made clear that for them, including this transparency provision in the Agreement would be a compromise alternative to including non-specific fuel subsidies within scope.” Ambassador Wills allegedly provided a special carve-out to the European Union in the scope of the draft agreement by proposing that “for the greater certainty, government-to-government payments under fisheries access agreements shall not be deemed to be subsidies within the meaning of this Agreement.” India suggested that fuel subsidies provided by the big subsidizers must be taken into account under the non-specific category, even though there are no specific fuel subsidies, said people, who asked not to be quoted. In sharp disagreement, Norway and several other industrialized countries maintained that though they provide fuel subsidies, they accrue to all categories. They added that there is no mechanism for measuring these non-specific fuel subsidies, said people, who asked not to be quoted. In response, India apparently said that the specific fuel subsidies provided to its survival categories of fishermen should not be taken into consideration, said people who asked not to be quoted. FISHERIES MANAGEMENT Many countries opposed any foray by the WTO into overseeing fisheries management on grounds that it has already been administered by the FAO. In the draft text, Ambassador Wills acknowledged, in Article 9.5, that” Members agree that the WTO is not a fisheries management organization and that thus WTO dispute settlement should not conduct de novo reviews of fisheries specific matters such as stock assessments or IUU (illegal, unreported and unregulated fishing) determinations. To this end, over the course of the negotiations, some Members have suggested adding various separate standards of review provisions to address such matters. Other Members have considered that this is not necessary, as the drafting of the disciplines themselves should make clear the applicable standard of review for each provision.” Several members also challenged the need to adopt a hybrid (list and effects approach) for tackling the OC&OF subsidies. Significantly, some members argued that there is no need to go beyond what was agreed in the disciplines for overfished stocks in Article 4 of the Fisheries Subsidies Agreement concluded at the WTO’s 12th ministerial conference (MC12) last June. During the meetings, Pakistan proposed transfer of technology provisions in the proposed agreement, while India brought back its repeated demand to include the polluter-pays principle in the negotiations which seem to have been opposed by the big subsidizers. In short, while the first fisheries week finally kick-started the negotiations with illuminating exchanges, the difficult issues are yet to be addressed. Therefore, the second fisheries week is most likely going to test the nerve and resolve of the members if they are going to head towards a full Fisheries Subsidies Agreement in 2023. With only three countries – Switzerland, Singapore, and the Seychelles – so far having deposited their instruments of acceptance of the protocol to the partial Fisheries Subsidies Agreement concluded last June, the road ahead appears to be bumpy and full of roadblocks, said people, who asked not to be quoted. +
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