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Info Service on WTO and Trade Issues (May21/15) Washington DC, 12 May (D. Ravi Kanth) – Ahead of the trade ministers’ meeting on 15 July on fisheries subsidies, the chair of the Doha Rules negotiations has issued a draft consolidated text, on his own responsibility, on prohibiting harmful fisheries subsidies, in what is being seen as an “asymmetrical” and “rigged” text in favour of the big subsidizers, said people familiar with the development. At an informal Doha Rules negotiating body meeting on fisheries subsidies held on a virtual platform on 11 May, the chair, Ambassador Santiago Wills from Colombia, spoke on the provisions set out in his latest text (TN/RL/W/276), without giving members the floor to respond. Ambassador Wills said that “the entire document is effectively in square brackets and nothing is decided until everything is (decided).” He acknowledged that “the eventual form of the new disciplines remains to be decided, whether an annex to the SCM Agreement or a stand-alone new agreement”, suggesting that the discussion on this issue will “prevent us from engaging on the substance.” As part of the next steps, the chair said he will hold confessional meetings in the HoD (Heads of Delegation) plus one format on 20 and 21 May in which the respective HoD has “to identify up to three issues in the text that are the toughest for your delegation.” He admitted that his text does not represent “the final draft for ministers,” rather it is intended as “the crucial first step.” Ambassador Wills said that the new text “is not a consolidation of proposals,” claiming that the changes to the text are in the direction of reducing gaps and building convergence on the points they address. The chair admitted that he did not include two proposals, particularly the exemptions sought by the ACP (Africa, Caribbean, and Pacific) Group and African Group of countries, suggesting that these and other suggestions will be discussed in the coming days. The ACP proposal called for exempting prohibitions under paragraph 5.1 in the second revised draft text issued in December last year for the developing and least-developed countries. The ACP Group had argued that “the prohibition under paragraph 5.1 shall not apply to (a) LDC members for all fishing or (b) developing country members with a share of annual global marine capture production under (2.5) per cent calculated based on the most recent published FAO (UN Food and Agriculture Organization) [statistics], and (c) a developing country member for fishing-related activities within their exclusive economic zones.” BIG SUBSIDIZERS RECEIVE REVERSE S&DT The latest chair’s text appears to stand out starkly in favour of the big subsidizers, who had engaged all along in industrial-scale fishing and had caused overcapacity and overfishing (OC&OF), with a special carve-out from the proposed disciplines in the OC&OF pillar. Despite the demand from many developing and least-developed countries for eliminating the provision on exempting the big subsidizers from the prohibitions in the OC&OF pillar, the chair enabled the exemption under what is called “sustainability-based flexibility”, said people familiar with the development. In sharp contrast, the developing countries, who have not caused OC&OF or overfished stocks, are being punished with extreme dilution of their special and differential treatment (S&DT) in all three pillars – disciplines for prohibitions in the IUU (illegal, unreported, and unregulated) fishing pillar, OC&OF pillar, and overfished stocks, said people, who asked not to be quoted. The nine-page chair’s text appears to have tweaked various provisions from the second revised draft text issued last year, retaining “the old wine in a new bottle”, said a person, who asked not to be quoted. “ASYMMETRICAL” PROVISIONS On the disciplines in the three pillars, the text has almost failed to live up to the United Nations Sustainable Development Goal (SDG) 14.6 mandate, said people familiar with the development. The UN SDG 14.6 proposed that by 2020, WTO members must “prohibit certain forms of fisheries subsidies which contribute to overcapacity and overfishing, and eliminate subsidies that contribute to IUU (illegal, unreported and unregulated) fishing, and refrain from introducing new such subsidies, recognizing that appropriate and effective special and differential treatment for developing and least developed countries should be an integral part of the WTO fisheries subsidies negotiation.” The UN mandate became the raison d’etre for the fisheries subsidies negotiations since the WTO’s eleventh ministerial conference (MC11) in Buenos Aires, Argentina, in December 2017. In his nine-page text, the chair said “in keeping with our mandate, as expressed in the Ministerial Decision from MC11 (WT/MIN(17)/64) which incorporates SDG target 14.6, we are charged with creating comprehensive and effective new disciplines to address fisheries subsidies that harm sustainability.” Ambassador Wills said “coupled with your recurring statements in the Negotiating Group and the TNC on the need to deliver a meaningful outcome, to me this means an ambitious outcome, and this has been my guiding principle in putting forth the compromise language contained in the new text.” Further, “where there was a choice to be made, I opted for ambition, and I believe that it is incumbent upon all of us to maintain a robust ambition level as we finalize the disciplines,” he added. Yet, when it comes to the actual proposals in his text, Ambassador Wills appears to have systematically upended the UN SDG 14.6. For example, the chair ensured that in paragraph 5.1.1 (what was earlier set out in paragraph 5.2 of the second revised draft text) “a subsidy is not inconsistent with Article 5.1 (which contains all the provisions on prohibitions in the OC&OF pillar) 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.” Despite the demand by many countries for the elimination of the special carve-out for the big subsidizers on OC&OF, the above provision has undermined the very purpose of negotiating fisheries disciplines as per the UN SDG 14.6, said a person, who asked not to be quoted. The chair, however, justified the controversial provision under what is called the “sustainability-based flexibility,” which is apparently disingenuous for Ambassador Wills to claim, the person said. On special and differential treatment for developing and least-developed countries with small-scale and artisanal fishing communities, the chair has proposed a time limit for S&DT of two years for fishing up to 12 nautical miles in the IUU disciplines, two years for overfished stocks, and seven years in the OC&OF disciplines. In addition to the S&DT time limits for developing and least-developed countries, the chair included language on burdensome compliance commitments, as demanded by the major subsidizers, especially the United States, said people familiar with the development. It is not clear how the chair arrived at these figures for the duration of the S&DT, as developing countries never suggested these numbers, the person said. Effectively, the chair has diluted the S&DT flexibility to such an extent and his specific time-frames are inconsistent with the UN SDG 14.6, which calls for “recognizing that appropriate and effective special and differential treatment for developing and least developed countries should be an integral part of the WTO fisheries subsidies negotiation.” Further, the S&DT proposed in the chair’s latest text is diametrically opposed to the language of “common but differentiated responsibilities” in the Paris climate change agreement, said several people. The text appears to be “rigged” in favour of the big subsidizers, upending the “polluter-pays” principle, while forcing maximum burden on developing countries even though they were not responsible for depleting global fish stocks through industrial-scale fishing, the person said. Ambassador Wills has turned the fisheries subsidies negotiations into a “devil’s bargain” for developing countries, the person said. The chair also appears to have targeted China by including in paragraph 5.2 in his latest text that countries cannot engage in subsidies to fishing in high seas and oceans beyond their territories. Paragraph 5.2 states: “5.2 (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. (b) Subparagraph (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.” Given the opaque “confessionals” and processes created by the chair for discussions towards the end of the month, the prospects for progress seem very limited, said people, who asked not to be quoted. In effect, the chair’s latest draft consolidated text has put the onus on developing countries to bargain for special and differential treatment and “policy space,” while leaving the big subsidizers without any punishment, said people, who asked not to be quoted.
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