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TWN Info
Service on WTO and Trade Issues (Apr21/03) Washington DC, 7 Apr (D. Ravi Kanth) – Without addressing the existential crises stemming from the COVID-19 pandemic and the Appellate Body impasse, the WTO director-general Ms Ngozi Okonjo-Iweala and the chair of the Doha Rules negotiating body seem to be working in tandem to steam-roll an imbalanced agreement on fisheries subsidies, said people familiar with the development. In his aide-memoire sent to members on 30 March, the Rules chair, Ambassador Santiago Wills from Colombia, said that “soon after our last cluster (in March), Dr. Ngozi Okonjo-Iweala assumed her role as Director-General.” “As you know,” he wrote in the same e-mail, “the fisheries subsidies negotiations are high on her priority list.” “She has also made it clear that we should reach an outcome as soon as possible,” Ambassador Wills said. “And indeed, she (Ms Okonjo-Iweala) is ready to get straight to work, and I have met with her to brief her on both substantive and procedural issues, and she is reflecting on how best she can get involved,” Ambassador Wills said. The chair recalled that “during our last HoD meeting, many of you welcomed the momentum her appointment would bring to these negotiations, and I understand that she has started meeting with many of you and that the fisheries subsidies negotiations have been a part of those discussions.” He said he hopes that “those meetings (between the DG and members) have been fruitful and you are all energized to deliver on our mandate soon.” Ominously, putting a one-sided agreement on fisheries subsidies before addressing the COVID-19 pandemic that has claimed more than 2.8 million lives with 131 million registered cases, shows that the WTO only works to safeguard the interests of powerful developed countries and Big Pharma, said people, who asked not to be quoted. Instead of working with members on the proposed TRIPS waiver for ramping up production of diagnostics, therapeutics, and vaccines, the DG chose to convene a second round of meetings with Big Pharma to explore how to ramp up the production of vaccines, said people involved in the discussions on the TRIPS waiver. The TRIPS waiver seeks to temporarily suspend certain provisions in the TRIPS Agreement relating to copyrights, industrial designs, patents, and protection of undisclosed information to combat the COVID-19 pandemic until it is brought under control, people said. FISHERIES SUBSIDIES NEGOTIATIONS Against this backdrop, Ambassador Wills wants to embark on a series of heads of delegation (HoD) level meetings from 12 April ostensibly to unblock the key deadlocked issues in the fisheries subsidies negotiations. The chair, who has introduced controversial proposals such as Article 5.2 in the overcapacity and overfishing (OC&OF) pillar that is aimed at exempting the big subsidizers to continue with their industrial-scale fishing, is now attempting to reinforce the proposals that are inimical to the interests of an overwhelming majority of members, said a person, who asked not to be quoted. Instead of removing the controversial proposals to buttress the interests of the big subsidizers, the chair is now blaming members in that “many of the discussions have become circular particularly in the areas of (i) a possible exemption for subsidies to subsistence/artisanal/small-scale fishing; (ii) due process requirements for illegal, unreported, and unregulated (IUU) fishing determinations; and (iii) the approach to overcapacity and overfishing prohibition.” In his email sent to members on 30 March, the chair said that “the objective of this cluster is to address those key issues where we seem to have exhausted the technical discussions, and where we need high level attention.” But, in reality, the chair has not been able to convince members as to why he inserted Article 5.2 in the second revised draft consolidated text, said people, who asked not to be identified. Ambassador Wills is now attempting to seek a trade-off between the interests of artisanal and small-scale fishermen, who survive for their livelihood on fishing and who have not in any way contributed to the problem of overfishing and depletion of global fish stocks, and the demands of the major subsidizers to continue with their industrial-scale fishing based on the OC&OF architecture, people said. The chair said he will hold small-group meetings at the HoD level only during the April cluster beginning on 12 April. The chair will convene three small-group sessions on 12-13 April to discuss “a possible exemption for subsidies to subsistence/artisanal/small-scale fishing.” Ambassador Wills said that his “impressions from discussions on this topic at the level of experts is that many developed Members are not demandeurs of an exemption for subsidies to subsistence/artisanal/small-scale fishing, and some are even of the view that there should not be an exemption for subsidies to this type of fishing at all.” “Current proposals, including in paragraph 1.3 of RD/TN/RL/135, and in RD/TN/RL/136, propose for this exemption to apply to all Members …” The chair is asking whether his impression is correct “that many developed Members are not demandeurs of an exemption for subsistence/artisanal/small-scale fishing? If so, what is the proponents’ rationale for having such an exemption apply to all Members?” The chair sought to know whether “limiting to developing Members the applicability of any such exemption or flexibility likely attracts more convergence?” On Tuesday afternoon (13 April) and Wednesday all day (14 April), the chair said that he intends to hold three small-group meetings to discuss “due process requirements for illegal, unreported, and unregulated (IUU) fishing determinations.” Ambassador Wills said that he will convene three small-group meetings on 15-16 April “on the approach to the overcapacity and overfishing discipline.” The chair said “delegations generally share a similar reading, as elaborated in my communication of 9 March 2021, of the hybrid approach in Article 5 of the draft consolidated text (RD/TN/RL/126/Rev.2).” “Specifically,” he said, “the intention of Article 5.2 is to qualify the prohibition of subsidies that contribute to overcapacity and overfishing set forth in Articles 5.1 and 5.1.1, such that a Member could provide otherwise prohibited subsidies if it demonstrates that measures are implemented to maintain stocks at a biologically sustainable level.” “Despite this shared understanding on the reading of the provision, I note that delegations remain too far apart on how to advance our textual work on this key element of the disciplines,” the chair said. He said that “too often, Members point to what they perceive to be shortfalls in the current text or in the views of other Members, and then fall back to their preferred positions and approaches, without concrete suggestions for bridging the gaps.” Ambassador Wills admitted that “failure to progress on an overall approach for the overcapacity and overfishing discipline also is posing difficulties in moving forward in other areas. In this regard, the objective of these sessions is to explore the following question: * What specific drafting changes would need to be made to Article 5.1 and Article 5.2 of the draft consolidated text (RD/TN/RL/Rev.2) in order to make those provisions workable for your delegation(s)? * In providing your response and comments to this question, as with the other questions raised, please do bear in mind that we should be working under the mind-set of “what my delegation can live with” instead of “what is my delegation’s preferred language”.” He will convene an open-ended meeting on 21 April at the level of HoD+1 and arrangements have been made to continue into the afternoon if necessary. OVERFISHED STOCKS Meanwhile, the chair intends to discuss the likely disciplines in the overfished stocks pillar on 8 April, an area that remains untouched from December 2019. In his email sent to members on 30 March, the chair referred to the draft text circulated by the facilitator on overfished stocks in December 2019, which was incorporated in the chair’s first version of the draft consolidated text. The chair said that while work on the draft consolidated text on the disciplines on overcapacity and overfishing has evolved as per the second draft consolidated text, “by contrast, the text in Article 4 on overfished stocks remains unchanged from that in the first version of the draft consolidated document, as we have not returned to that topic except for the placeholder for the un-assessed stocks, which was removed in RD/TN/RL/126/Rev.2 (the second revised draft text issued in December last year).” The chair said that he wants members to focus that in the light of the evolution of the draft disciplines relating to overcapacity and overfishing (in Article 5), what changes to the language on overfished stocks would members consider necessary to capture its intended purpose? The disciplines proposed by the chair in the first version of the draft consolidated text are as follows: ARTICLE 4: PROHIBITION ON SUBSIDIES CONCERNING OVERFISHED STOCKS 4.1 No Member shall grant or maintain subsidies for fishing or fishing related activities regarding an overfished stock when any of the following situations related to that stock are present: (a) lack of recovery of the stock; or (b) continuous reduction in the level of the stock. 4.2 A fish stock is overfished if it is: [ALT1 recognized as overfished by the Member under whose jurisdiction the fishing is taking place or by a relevant RFMO/A based on best scientific evidence available to and recognized by them.] [ALT2 at such a low level that mortality from fishing needs to be restricted to allow the stock to rebuild to a level that produces maximum sustainable yield (MSY) or alternative reference points based on the best scientific evidence available to and recognized by the Member.] 4.3 A Member may grant or maintain the subsidies set out in Article 4.1 if the subsidies and/or other appropriate measures are implemented in a manner that ensures rebuilding of the stock to a biologically sustainable level as determined by the coastal Member under whose jurisdiction the fishing is taking place or a relevant RFMO/A in areas and for species under its competence. 4.4 [For the purposes of [paragraphs 2 and 3 of this Article], in case of overlap between the area of jurisdiction of a coastal Member and the area of competence of a RFMO/A, the determination made by the coastal Member shall prevail.] 4.5 [PLACEHOLDER – UNASSESSED STOCKS] 4.6 (a) [The prohibition under paragraph 4.1 shall not apply to subsidies granted or maintained by developing country Members, including LDC Members, for fishing or fishing related activities at sea within their territorial sea.] (b) [PLACEHOLDER – TRANSITIONAL PERIOD SDT FOR OFS]]
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