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TWN
Info Service on WTO and Trade Issues (Nov23/18) Geneva, 27 Nov (D. Ravi Kanth) — The chair of the Doha fisheries subsidies negotiations at the World Trade Organization, Ambassador Einar Gunnarsson of Iceland, seems to be in a hurry to discuss the “legal form of the new disciplines”, even as members seemingly remain divided on the disciplines on subsidies contributing to overcapacity and overfishing (OCOF) aimed at the big subsidizers who are allegedly responsible for the global depletion of fish stocks, said people familiar with the negotiations. As the clock is ticking down for the WTO’s 13th ministerial conference (MC13), scheduled to take place in Abu Dhabi in February 2024, the chair appears to be moving “heaven and earth” to accelerate the negotiations despite the numerous hurdles, said people who asked not to be quoted. Clearly, there is a fundamental divide between the big subsidizers, who seem determined to minimize the burden of the proposed OCOF disciplines on the one side, and the large majority of developing and least developed countries that depend on fishing and fish-related activities for their livelihood and survival, on the other. The five big subsidizers who allegedly contributed to overcapacity and overfishing through their subsidies that have depleted global fish stocks include China, the European Union, the United States, Japan, and Korea, according to several studies. According to one study by researchers on fisheries subsidies, total global fisheries subsidies is estimated at USD 35.4 billion, of which capacity-enhancing subsidies are USD 22.2 billion. Apparently, the top five subsidizers contribute 58% (or USD 20.5 billion) of the total estimated subsidies. A large majority of developing and least-developed countries that did not contribute to OCOF want the big subsidizers to undertake substantial commitments to prohibit their subsidies contributing to OCOF. In their proposals, they apparently questioned the current list approach that is being adopted in the fisheries subsidies negotiations, with some of them pointing to the effects approach as well. More importantly, the developing countries apparently argued against the “sustainability” criterion under which the big subsidizers are allegedly being let off the hook through a test wherein they have to merely demonstrate that “measures are implemented to maintain the stock or stocks in the relevant fishery or fisheries at a biologically sustainable level.” Given their under-developed fisheries sectors, the developing countries, particularly India, seem to have sought enhanced special and differential treatment (S&DT) provisions to develop these sectors. So far, after seven rounds of negotiations, there seems to be no clarity yet on several divisive issues in the negotiations, said negotiators involved in the discussions. It is against this backdrop that the chair’s two emails to members assume importance, said people, who asked not to be quoted. CHAIR’S EMAILS The chair sent two separate emails on 23 November, both seen by the SUNS. In the first email sent to members, the chair said: “I will be organizing a deep dive interactive thematic session to discuss the practicalities of the disciplines as proposed by Members under Article A today (27 November)”. During the proposed interactive thematic session on relevant data sources, the chair said “to the Draft Text held on 6 October, it was clear that a two-tier sustainability-based criteria based on aggregate level of subsidization raises challenges.” Since then, the chair said, “Members have proposed other ideas to establish such threshold, such as: * Based on subsidy intensity such as annual aggregate value of subsidies to fishing or fishing-related activities not exceeding 5 per cent of the total annual value of that Member’s annual marine capture production; and * Based on distant water fishing. Some have defined distant water fishing as fishing or fishing related activities beyond the FAO major fishing area(s) that is (are) adjacent to the natural coastline of a Member.” He said, “In the same manner in which we brainstormed on the practical implementation of a threshold based on the aggregate level of subsidization, I suggest we have a deep dive discussion to better understand how these options would work in practice.” The chair said categorically that the session to be held on 27 November is “not a negotiating session. It is an opportunity to brainstorm and gain a better understanding of how the various approaches could work in practice.” Ambassador Gunnarsson said that the thematic session “is without prejudice to Members’ views on the two-tier sustainability-based conditionality.” In the second email, Ambassador Gunnarsson said, “I believe it is time for the Negotiating Group on Rules to begin to discuss the legal form of the new disciplines, and to this end, I would like to invite you to a meeting on 30 November 2023.” Explaining what he meant by “legal form,” the chair said, “I mean the type of legal instrument that should encompass the new disciplines, as well as the relationship between that instrument and the Agreement on Fisheries Subsidies.” Over the last few days, the chair has been holding direct talks with key members who raised several fundamental issues to explore whether he can find compromises. Against this backdrop, the chair said he “raised and exchanged some preliminary observations on this matter with all delegations I met last week during my bilateral consultations.” The chair said he “would now like to report back on what I heard during those consultations, share with you my reflections on how I see us moving forward, and provide Members with an opportunity to discuss and exchange their own thoughts and ideas on the matter.” BRIDGING PROPOSAL BY AUSTRALIA & NEW ZEALAND Australia and New Zealand, in the “Friends of Fish” group, issued what they called a “bridging proposal on Article A” (RD/TN/RL/182) that lists the subsidies to be prohibited. CONTRIBUTING TO OVERCAPACITY AND OVERFISHING A.1 [1] No Member shall grant or maintain subsidies to fishing or fishing-related activities that contribute to overcapacity or overfishing. For the purpose of this paragraph, subsidies that contribute to overcapacity or overfishing include: (a) subsidies to construction, acquisition, modernisation, 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. Before granting a subsidy, a Member must consider the consequence of the subsidy on overcapacity and overfishing. A.1.1 (a) A subsidy is not inconsistent with Article A.1 if a subsidizing Member demonstrates that measures are implemented to maintain the stock or stocks in the relevant fishery or fisheries at a biologically sustainable level. [2] A.1.1 (b) The demonstration referred to in subparagraph A.1.1 (a) shall be made by the subsidizing Member in its regular notifications of fisheries subsidies under Article 25 of the SCM Agreement, Article 8 of the Agreement on Fisheries Subsidies, and Article C. The notification shall be sufficiently precise to enable other Members to evaluate the consistency of the subsidy program with the conditions set out in Article A.1.1 and shall include the following: (i) status of the fish stocks in the fishery for which the subsidy is provided (e.g., overfished, maximally sustainably fished, or underfished) and the reference points used, and whether such stocks are shared [3] with any other Member or are managed by an RFMO/A; and (ii) conservation and management measures in place for the relevant fish stock. A.1.1 ( c) In addition to what is required under Article C.2, a subsidizing Member invoking Article A.1.1 (a) shall notify the Committee on Fisheries Subsidies in writing on an annual basis of the following: (i) catch data by species or group of species in the fishery for which the subsidy is provided [4]; and (ii) the value at first landing of total marine capture fisheries production attributable to the Member. [5] A.1.2 Any subsidizing Member whose subsidies in Article C.1 are greater than 5 per cent of the total value at first landing of total marine capture production [most recently] reported under Article A.1.1 (c)(ii) must, in addition to what is required under Article A.1.1: (i) provide, to the extent possible or relevant, information on the fleet capacity in the fishery for which subsidies are provided; and (ii) demonstrate through a notification [immediately][promptly] after a new subsidy program comes into effect, and thereafter in the Member’s regular notifications, that measures are implemented which maintain the stock or stocks in the relevant fishery at a biologically sustainable level. A.1.3 Any Member may, at any time, seek clarification on the fisheries subsidies granted or maintained by another Member under this Article. Where a Member has brought such a matter to the attention of the subsidizing Member or the Committee on Fisheries Subsidies referred to in Article 9 of the Agreement on Fisheries Subsidies, the subsidizing Member shall respond to the request promptly in writing and in a comprehensive manner. A.1.4 In the case of non-notification or notification inconsistent with paragraph A.1.1 or A.1.2, Article A.1 shall apply. FOOTNOTES: [1] For greater clarity, Article A.1 does not apply to subsidies to the extent they regard stocks that are overfished. [2] For the purpose of this paragraph, a biologically sustainable level is the level determined by a coastal Member or a coastal non-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 in areas and for species under its competence. A coastal Member who is not the subsidizing Member shall not be required to provide data to enable the subsidizing Member to invoke A.1.1 [3] The term “shared stocks” refers to stocks that occur within the EEZs of two or more coastal Members, or both within the EEZ and in an area beyond and adjacent to it. [4 ] For multispecies fisheries, a Member instead may provide other relevant and available catch data. [5] A subsidizing Member may provide its most recent published official data or the most recent published FAO data. +
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