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THIRD WORLD NETWORK INFORMATION SERVICE ON SUSTAINABLE AGRICULTURE Geneva, 24 Sep (D. Ravi Kanth) – Some negotiating markers seem to have been drawn on what ought to be a “meaningful” Doha fisheries subsidies agreement at the World Trade Organization, with the ACP (African, Caribbean, and Pacific ) group, the African Group, and India having made substantial proposals towards a balanced agreement. During a meeting with the WTO director-general Ms Ngozi Okonjo-Iweala on 22 September, the United States Trade Representative (USTR) Ambassador Katherine Tai has apparently said that the WTO’s 12th ministerial conference (MC12) must deliver a “meaningful” agreement on fisheries subsidies, a response to the COVID-19 pandemic and on WTO reforms, according to a report in the Washington Trade Daily on 23 September. However, it is not clear as to what would constitute a “meaningful” agreement from the US perspective given its maximalist demands for including the issue of forced labour in the proposed disciplines on fisheries subsidies; special and differential treatment “for certain developing country members with demonstrated needs”; and opposition to “a blanket approach with permanent carve-outs”. The USTR, in her statement at the virtual ministerial meeting chaired by Ms Okonjo-Iweala on 15 July, had said “it does not reflect that some self-declared developing country Members are among the largest producers and subsidizers or among the wealthiest or more significant members of this organization.” It is also not clear whether the USTR was referring to China, India, Indonesia, and other developing countries as “self-declared developing country members.” Perhaps all these issues may have surfaced during the discussion between the WTO DG and the USTR on 22 September. It is against this backdrop that the separate proposals circulated by the ACP, the African Group, and India have assumed importance for negotiating a “meaningful” agreement from their perspectives. The chair of the Doha fisheries subsidies negotiations, Ambassador Santiago Wills from Colombia, issued his revised draft text (TN/RL/W/276/Rev.1) on 30 June, which was severely criticized by many trade ministers at a virtual ministerial meeting on fisheries subsidies on 15 July. More than 80 trade ministers from developing and least-developed countries pronounced on 15 July that the chair’s draft text is imbalanced and it would need substantial changes to make it a balanced and “palatable” text for them. TEXTUAL PROPOSALS BY ACP, AFRICAN GROUP, INDIA In their own separate textual proposals circulated on 23 September, the ACP, African Group and India appear to have pushed back against the chair’s revised draft text. These proposals from the largest majority of developing countries call for insertion of their proposals in the overcapacity and overfishing (OC&OF) pillar, on transparency and notification requirements, and even on dispute settlement provisions. In their
proposal contained in document RD/TN/RL/146 and issued on 23 September,
the ACP and the African Group, which include more than 90 developing
and least-developed countries, called for the deletion of “the artisanal
and small-scale paragraph in the Chair’s text, as our Members maintain
that artisanal and small-scale as a scope exclusion, not as special
and The two groups also said “the insertion of Articles 5.2, 5.3 and [5.4] in 5 .5 (a) and (b) is to reflect that the LDC and de minimis provisions were always designed to apply to the Article 5 prohibitions, which were only the list of prohibited subsidies deemed to be harmful found in Article 5.1.” “Our groups did not support any additional prohibitions for Article 5,” they said. More importantly, the two groups called for deleting Alt.1 in Article 5.5 and inserting a modification to Alt.2 as follows: (a) The prohibition under Articles 5.1, 5.2, 5.3 and [5.4] shall not apply to subsidies granted or maintained by LDC Members for fishing or fishing related activities. (b) The prohibitions under Articles 5.1, 5.2, 5.3 and [5.4], shall not apply to developing country Members with a share of annual global marine capture production not exceeding [X] percent as per the most recent published FAO data; (c) The prohibition under Article 5.1 shall not apply to subsidies granted or maintained by a developing country Member for fishing or fishing related activities within their exclusive economic zone. In short, the two groups called for exempting the developing and least-developed countries from the main provisions of Article 5 dealing with the proposed disciplines for subsidies granted in the overcapacity and overfishing pillar. The underlying rationale appears to be that since the ten big subsidizers – the European Union, the United States, Japan, Canada, Korea, Chinese Taipei, and China among others – caused the problem of overcapacity and overfishing, they must undertake the burden of removing their harmful subsidies. INDIA’S CONSOLIDATED PROPOSAL India circulated a consolidated proposal (RD/TN/RL/148) on 23 September. It called for incorporating its textual proposals in the revised negotiating text to be issued by the chair next month. India’s proposals cover Article 5 prohibitions on subsidies concerning the overcapacity and overfishing pillar; notification and transparency provisions to be inserted under Article 8; Article 10 on dispute settlement; special and differential treatment for “unreported and unregulated fishing”; and overfished stocks. Under Article 5 concerning the overcapacity and overfishing pillar, India proposed several conditions in Article 5.1, including that “no Member shall grant or maintain subsidies to fishing or fishing related activities if an affirmative determination regarding the existence of overcapacity and/or overfishing has been made by : (a) the coastal Member within its jurisdiction; or (b) the relevant RFMO/A (regional fisheries management organization/arrangement), in accordance with the rules and procedures of the RFMO/A and relevant international law, in areas and for species under its competence.” However, India agreed to an exemption under Article 5.2 by saying that “notwithstanding Article 5.1, a Member may grant or maintain subsidies if it implements measures to maintain the stock or stocks in the relevant fishery or fisheries at a biologically sustainable level.” Under Article 5.3, India said “notwithstanding Article 4.3 (rebuilding stocks in the IUU or illegal, unreported, and unregulated pillar), no Member engaged in distant water fishing as on the date of entry into force of (this Instrument), shall grant or maintain subsidies to fishing or fishing related activities beyond its Exclusive Economic Zone for a period of [twenty-five years] from the date of entry in to force of (this Instrument).” Essentially, India has limited the use of OC&OF subsidies to only the Exclusive Economic Zone within 200 nautical miles. Lastly, India sought special and differential treatment by saying that the prohibition under Article 5.1 should not apply to “subsidies granted or maintained under the following provisions: (a) by any LDC Member for fishing or fishing related activities; (b) by developing country Members for low income, resource-poor or livelihood fishing or fishing related activities within their territorial waters and the Exclusive Economic Zone; and (c) to developing country Members that are not engaged in distant water fishing as on the date of entry into force of this [instrument] for future fishing or fishing-related activities, including distant water fishing, for a maximum period of [twenty five] years after the entry into force of this instrument.” India also demanded that, under Article 5.7 of its textual insertion, “the disciplines under Article 5.1, Article 5.3 and Article 5.4 shall not apply to any developing country Member whose share of annual marine capture fish production is less than [one percent] of the global annual marine capture fish production.” With regard to overly burdensome and cumbersome notification and transparency provisions provided under Article 8 in the chair’s consolidated draft text, India proposed the following provisions to be included. The provisions are: 8.2 Every Member engaged in distant water fishing shall within [ninety] days from the date of entry into force of this Instrument, and every year thereafter, declare the details of: (a) its fishing vessels engaged in fishing or fishing related activities in the distant waters (whether part of an RFMO/A or the High Seas); and (b) the RFMO/A where it is a member/contracting party and has engaged in distant water fishing and the names and details of the High Seas where it has engaged in distant water fishing. India also made some significant changes on scope (Article 1 of the chair’s draft text) by including elements that “shall apply subject to the international law of the sea and relevant instruments, and the sovereign rights of coastal states provided for therein, for the purposes of exploring and exploiting, conserving and managing the living resources, including the highly migratory species, within a zone of up to 200 nautical miles under the coastal Member’s jurisdiction.” Given these changes, it is going to be a Herculean task to conclude the fisheries subsidies negotiations at MC12, said people, who preferred anonymity.
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