TWN Info Service on WTO and Trade Issues (Oct20/09)
14 October 2020
Third World Network

Differing views on chair’s attempts to increase pace of fisheries talks
Published in SUNS #9209 dated 13 October 2020

Washington DC, 12 Oct (D. Ravi Kanth) – Members of the World Trade Organization have expressed sharply differing views over attempts by the chair of the Doha Negotiating Group on Rules to increase the pace of the Doha fisheries subsidies negotiations through small group inter-sessional meetings based on a seemingly non-inclusive format and sudden presentation of revised textual proposals without requisite prior discussions and advance notice, said trade envoys.

Amid the escalating COVID-19 pandemic that has so far claimed more than one million lives, the chair, Ambassador Santiago Wills from Colombia, chose to step up the negotiations from 5-8 October, notwithstanding the inability of capital-based officials to participate in the meetings due to the COVID-19 restrictions on travel as well as technical glitches in the plenary sessions to discuss proposals in the draft consolidated text.

At the informal open-ended plenary meeting on 9 October, Ambassador Wills presented his report on the October cluster of meetings and the proposed work plan for the coming days.

He said the progress has been slow, emphasizing that members need to accelerate work, said participants in the meeting.

But sharp concerns were also expressed over the quality of the outcome of the new disciplines on fisheries subsidies and whether they will live up to the mandate set out in the United Nations Sustainable Development Goal (SDG) 14.6, trade envoys said in their statements at the meeting on 9 October.

According to SDG 14.6, members are to prohibit by 2020 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.

Commenting on the chair’s report on the October cluster of meetings, the developed countries, including the United States and the European Union among others, strongly supported the chair’s decision to step up the pace of negotiations through small group, inter-sessional meetings for finalizing the agreement by the end of the year.

In sharp contrast, India, South Africa, Jamaica, which is the coordinator for the ACP (Africa, Caribbean, and Pacific) group, and several other developing countries raised the alarm over the presentation of textual proposals without any proper sequencing of the issues while ignoring the linkages and cross-cutting issues.

The ACP group, which represents the interests of more than 90 developing countries that are dependent on fishing, said it was not invited for the small-group meetings, suggesting that they are not inclusive, according to the statement by the ACP at the 9 October meeting, said a trade envoy, who preferred not to be quoted.

Jamaica, on behalf of the ACP group, urged the chair that “in order to advance our work in a transparent and inclusive manner, we ask (that) any process, whether it be consultations, plenary sessions or small group proceedings, should be conducted in a transparent, inclusive and consensus-based manner.”

In his report to the members, Ambassador Wills said that following the last cluster of meetings, he held separate consultations with representatives from 20 delegations on Article 5 in the draft consolidated text concerning the proposed disciplines on overcapacity and overfishing.

He said that he also discussed during those consultations whether the new disciplines should take the form of a standalone agreement or as an annex to the ASCM (the WTO’s Agreement on Subsidies and Countervailing Measures).

Referring to the consultations, the chair said a number of delegations raised several other issues such as subsidies to IUU fishing and overfished stocks, dispute settlement and remedies, notifications and transparency, and scope and definitions.

Ambassador Wills admitted that he could not have full discussion in all the areas, suggesting that the draft consolidated document should remain neutral and at some point, the issues must be resolved, according to trade envoys, who asked not to be quoted.

As regards his discussion on the issue of territoriality and due process and dispute settlement, he acknowledged that any disciplines negotiated for the final outcome will not have any implications for adjudication on territoriality, suggesting that a panel would not assess issues with conflicting views on territoriality.

He suggested the concept of “firewalls” to ensure that new disciplines will not have implications for adjudication on territoriality aspects, according to participants at the meeting.

Ambassador Wills admitted that the overall progress in the negotiations was slow, including on issues such as definition of what would constitute “fish”, exemptions for subsidies in the context of natural disasters, and even the IUU determinations.

The chair said that more work needs to be done in all these areas, suggesting that he would hold meetings on 15 October to discuss Article 3.4 concerning disciplines for IUU fishing.

Article 3.4 remains in bracketed language and says that: “[In applying the prohibition in paragraph 3.1, the subsidizing Member may take into account the nature, gravity and repetition of IUU fishing committed by a vessel [or operator]. [The subsidizing Member may refrain from implementing the prohibition under paragraph 3.1 in case of a minor infraction.]]”.

Ambassador Wills urged members to enter into hard negotiations without making any rhetorical points or repeating old statements, according to participants at the meeting.

STATEMENTS BY THE US AND EU

Responding to the chair’s report, Ambassador Dennis Shea of the United States welcomed the chair’s inter- sessional meetings till the November cluster of meetings.

Ambassador Shea said that he regrets to hear that many delegations are seeking to preserve maximum freedom to subsidize fishing in the future rather than developing comprehensive disciplines on fisheries subsidies, according to participants at the meeting.

The US trade envoy urged the chair to convene more small-group meetings, including one-on-one meetings.

Ambassador Shea spoke about the need to lock in progress made in these small-group meetings. He also called for more work on transparency and notifications.

The European Union said time is short for making progress, noting that much more work needs to be done to overcome differences and divergences.

The EU said plenaries with open-ended sessions will not be able to cover all important issues. It argued that to make progress, the inter-sessional meetings in small groups are much needed.

STATEMENTS BY INDIA, SOUTH AFRICA AND ACP GROUP

In sharp contrast, India suggested that, for bridging the gaps in the members’ positions, more plenary sessions with text-based negotiations are needed.

Commenting on the process, India said that textual proposals to be discussed in the inter-sessional meetings and the cluster of meetings may be shared with members in advance so that they could participate and engage effectively, according to India’s statement.

India also requested the chair to share his plan for the sequence of articles for discussions in the upcoming meetings.

India expressed concern over the meetings scheduled for this week as it is posing a serious challenge for coordinating with various stake-holders in the Indian states as fisheries remain a state subject.

In these discussions, the presence of capital-based officials is important, said India, suggesting that they are unable to attend due to the COVID-19 restrictions.

India called for balancing the work program in such a way that it is not overly burdensome.

On the substantive issue of the definition of “fish”, India said it is important to have a definition of fish in this instrument as all members must have a common understanding of this term.

Otherwise, it would continue to pose problems as is the case with the moratorium on customs duties on electronic transmissions – where after more than 20 years, members are still discussing the scope of the electronic transmissions and the scope of the moratorium.

On natural disasters, India said that it supports the views expressed by several other countries that disciplines should have exemptions to subsidies provided in the event of natural disasters as well as such man-made disasters like oil spills that impact fisheries.

On another sensitive issue concerning territoriality and dispute settlement and due process, India said disputes relating to maritime jurisdictions are very sensitive and involve the issue of sovereignty, suggesting that it has referred the issue to its capital for guidance.

India said it is committed to prohibiting fisheries subsidies with effective special and differential treatment for developing and least-developed countries.

India emphasized that “we should not show undue haste to conclude the negotiations by December 2020 by compromising on the quality of the text and by compromising on the fair, inclusive and transparent procedures.”

In a sharp response over the process of small-group inter-sessional meetings, South Africa’s trade envoy Ambassador Xolelwa Mlumbi-Peter said “in order to make progress in our negotiations, we need to ensure that the principles of transparency, inclusivity and consensus-based decision-making should be respected in all instances.”

During this critical time, South Africa said “we need to ensure that our work progresses in an inclusive manner and the composition of the group must be carefully considered and must be representative.”

Ambassador Xolelwa called for “a structured work plan that will allow us to complete our negotiations,” emphasizing that the “sequencing of issues for discussion must be clear and must enable us to resolve issues.”

South Africa said it is “useful to have a complete work plan setting out all the areas of work to be completed.”

Ambassador Xolelwa said “the priority should be the core disciplines with the ultimate goal being to prohibit harmful subsidies as per the mandate,” suggesting that “there are a number of important issues and discussions that we need to have but the sequence is important.”

Further, “agreement on the core disciplines may address a number of concerns and clarify the parameters of the disciplines which may unlock an understanding on a number of issues,” South Africa said.

Ambassador Xolelwa said while “as HODs [heads of delegation], we have a keen interest in these negotiations, however, it remains unclear as to how we can constructively shape these negotiations.”

“Many of the issues brought to the level of HODs seem not to be mature enough for decisions to be taken,” Ambassador Xolelwa said, suggesting that her delegation is “ready to support a clear process that clarifies how HODs can be involved in solving bottlenecks and to facilitate more discussion where needed.”

Commenting on substantive issues, Ambassador Xolelwa said that “we believe that progress under the OCOF (overcapacity and overfishing) pillar can only be achieved if the scope of Article 5.1 is clarified, the coinciding issues in Article 5.1.1 and Article 5.1.3 would be easier to address – the same logic applies to the correlation between 5.1 and 5.2.”

She said that “the African Group and ACP indicated that the mixing of the list approach and the effects approach remains difficult to accept, while language such as “if it reduces” creates confusion as to the relationship between OCOF disciplines and Article 1.1 of the ASCM which clearly defines a subsidy that anticipates such a situation where a benefit is conferred.”

With respect to Article 3.3 concerning the disciplines for IUU fishing, South Africa said that “without solving the question of who makes determinations under Article 3.2, it is equally difficult to have a useful discussion.”

Therefore, “sequencing of discussions are critical to resolve some of the cross-cutting issues, [and] looking at text in isolation, while it may create a focused discussion, [it] may not be beneficial if the broader scope and context of discussions are ignored,” South Africa cautioned.

Ambassador Xolelwa expressed grave concern “regarding the lack of discussion on S&DT (special and differential treatment).”

Commenting on the “definition of fish,” South Africa said “while international definitions may help in other cases, this is impractical as there is no commonly accepted definition; this is the case with IUU and fish.”

“For issues such as territorial disputes, natural disasters and artisanal fishing; and payments under government- to-government access agreement – more discussion is required”, Ambassador Xolelwa said.

South Africa said “issues of dispute resolution also seem to occupy much of the discussions on determinations, such as in the area of IUU determinations as well as on the issue of territoriality and maritime jurisdiction.”

It would be important to also start looking at the brackets in Article 10 on dispute resolution in the draft consolidated text, she said.

Commenting on the scheduling of meetings on 15 October, South Africa expressed “concerns with the dates for the NGR (the Doha Negotiating Group on Rules) Plenary sessions as they clash with key meetings such as the TRIPS Council which will stretch the capacity of small delegations and puts us in a difficult situation of choosing between key and critical meetings that affect our interests.”

As regards the plan to appoint “Facilitators,” South Africa reiterated that it “must be carefully considered and be representative taking into account the limited capacity of small delegation(s).”

Jamaica, on behalf of the ACP group, raised several concerns on substantive issues concerning the proposed language for IUU fishing and OCOF among others.

More importantly, on the clusters and inter-sessional meetings, Jamaica said that “we have repeated the need to observe the context of COVID-19 and the small delegations we comprise who, whether or not in virtual mode, must carry and follow a number of files at the same time. These delegations are deeply vested and interested in the drafting of these disciplines and the outcome in terms of their national objectives.”

In conclusion, the ACP group urged the chair to consider “clear guidance on the work schedule, the sequencing of the content, and also on the precise role of the HoDs.”