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TWN Info
Service on WTO and Trade Issues (Nov20/26) Geneva, 24 Nov (D. Ravi Kanth) – Notwithstanding the ravaging COVID-19 pandemic as well as substantive differences in the revised draft text on fisheries subsidies, the chair of the Doha Rules negotiations has accelerated the negotiations on fisheries subsidies to reach an agreement by 20 December that may result in a skewed outcome contrary to the mandate outlined in the UN Sustainable Development Goal 14.6, trade envoys said. UN SDG 14.6 calls on members, by 2020, to “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.” At an informal Heads of Delegation (HoD) meeting held on a virtual platform on 20 November, developed countries such as Canada, the European Union, and members of the “Friends of the Fish” group led by New Zealand as well as several developing countries largely from South America insisted that it is important to finalize an agreement by the end of the year so as to send a signal that the WTO is capable of delivering a multilateral agreement on prohibiting fisheries subsidies to address the sustainability issue, said participants, preferring not to be quoted. However, many developing countries, with hundreds of millions of artisanal fishermen surviving for their livelihood on fishing, emphasized that it is imprudent to reach a hasty agreement that substantially undermines special and differential treatment, said trade envoys of developing countries. In his opening remarks at the meeting, the chair, Ambassador Santiago Wills from Colombia, informed members about the changes in the revised draft text (RD/TN/RL/126/Rev.1, an unofficial room document) issued on 2 November, saying that the draft agreement was “heading in the right direction.” (See SUNS #9225 dated 4 November 2020). However, the chair has not held a meeting since 2 November to discuss all the issues in the revised draft text, a trade envoy complained at the meeting. Ambassador Wills said various complex issues concerning the IUU (illegal, unreported, and unregulated) fishing, due process, and overcapacity and overfishing among others are being addressed in the right direction. The chair said issues concerning special and differential treatment (S&DT) are being addressed by the Swiss Ambassador Didier Chambovey. He informed members that he is going to convene more meetings (including a meeting with select trade envoys on 24 November) to accelerate the virtual cycle of meetings. In response to the chair’s remarks, Canada suggested that an agreement by the end of the year is imperative for addressing sustainability issues. Canada suggested how S&DT needs to be addressed and how important it is to finalize an agreement by the end of the year to address the sustainability issues. Norway said that flexibilities in OCOF (overcapacity and overfishing) and other issues could undermine the sustainability objective of the agreement, said persons, after attending the meeting on 20 November. The EU praised the chair’s hard work, suggesting that Brussels wants an ambitious agreement in line with the mandate as soon as possible. The continuous virtual process due to the pandemic resulted in progress, the EU said, arguing that the draft text needs important modifications that can be the basis for an eventual agreement, said persons, who asked not to be quoted. CHINA’S INTERVENTION China said the revised chair’s text shows some improvement in terms of clarity and completeness. The Chinese trade envoy Ambassador Zhang Xiangchen expressed regret over “the discrepancies on quite a few key issues” and “the discussions have made the issues more focused but fail to reach consensus.” Ambassador Zhang warned that “if Members will not seek compromises with sincerity and try to maintain the ambition at a proper level, consensus will not emerge no matter how many meetings we hold.” With one month left before the deadline for the negotiating work, the Chinese envoy urged “Members to show flexibility and demonstrate their sincerity to substantially cut existing subsidies so that we can achieve tangible outcomes by the end of this year.” INDIA’S INTERVENTION India’s trade envoy Ambassador Brajendra Navnit said that “even during the pandemic, we are negotiating at an intense pace and dedication on overall objective to have an instrument on sustainable fishing and to curb IUU fishing by essentially incorporating appropriate and effective special and differential treatment for developing and least developed countries.” Ambassador Navnit said that “keeping in mind the sustainability objective of these negotiations, India believes that the concept of polluters must pay principle should be made applicable for taking forward these negotiations.” “Those members who are responsible for providing huge subsidies for unsustainable fishing leading to Overcapacity and Overfishing should first take the responsibility in substantially reducing the huge harmful subsidies,” India said. Ambassador Navnit said “there is no merit in comparing millions of dollars of subsidies given in the past or being given presently for industrial fishing with minuscule subsidies of few dollars given for sustenance of livelihood and food security to our small fishermen and women.” “It is high time that asymmetries in earlier agreements such as those meted out to developing countries in the Agreement on Agriculture should not be repeated in this Agreement on Fisheries Subsidies,” he argued. India, he said, will oppose attempts to undermine special and differential treatment, emphasizing the difficulties faced by members due to new lockdowns and restrictions. India expressed sharp concern that “in the name of sustainable fishing, the unnecessary burden should not be imposed on developing countries and LDCs (least developed countries) who provide minuscule or do not provide any subsidies for fishing.” Ambassador Navnit reminded the Membership that “Special and Differential Treatment for Developing Countries and LDCs is an integral and very important part of the Instrument/Agreement being negotiated.” More importantly, “this S&DT is required to have a policy space for the future and to develop our fisheries sector,” India said, suggesting that India is discussing the issue of S&DT with Ambassador Chambovey, the “Friend of the Chair” on the S&DT provisions. India also remains “concerned at the lack of convergence on the Chair’s text in Article 5.7(c)”, which says: The prohibition under paragraph 5.1 shall apply to subsidies granted or maintained by developing country Members including LDC Members, for fishing or fishing related activities within their EEZ and the area of competence of RFMO/A if all the following criteria are met: i. the Member’s GNI per capita exceeds US$5,000 (based on constant 2010 US dollars) for three consecutive years; ii. the Member’s share of the annual global marine capture fish production exceeds 2% as per the most recent published FAO data; iii. the Member engages in distant water fishing; and iv. the contribution from Agriculture, Forestry and Fishing to the Member’s annual national GDP is less than 10% for the most recent three consecutive years. India said that “it is being conveyed to us that Members’ positions are far apart on S&DT,” arguing that “if the Members are aiming to conclude these negotiations, I will wish to convey that India may not have much flexibility left on our S&DT proposal reflected in the Chair’s text in Article 5.7(c).” “In addition, we need specific text on the transition period in the placeholder in unreported and unregulated pillar of Article 3.9(b),” India pointed out, urging members to “show flexibility if we have to move ahead in these negotiations.” “The S&DT in any final outcome has to be effective and appropriate having regard to the development needs, livelihood and food security concerns of developing countries and LDCs as well as having regard to their capacity to put in place effective mechanism to deal with IUU and appropriate conservation and management measures,” India emphasized. India reminded the chair about “the continued challenges in many countries on account of an increasing number of COVID-19 cases because of the second wave of the COVID-19 pandemic.” Members “must be aware of the new restrictions/lockdowns being imposed in various parts of the world, which makes it very difficult to have coordination with the capital-based experts and also even in the capital, amongst various departments, and with various provincial governments involved in these negotiations,” India argued. India informed the chair that “some of our key negotiating team members have been diagnosed with COVID-19 and finding it difficult to participate in the day-to-day basis meetings.” India said there has to be a “full discussion on your [the chair’s] revised text of 2nd November,” noting that members “have to cover a lot of ground on Dispute Settlement, Institutional Mechanism, Notification and Transparency parts of the text.” India cautioned the chair that it “cannot rush into these negotiations,” arguing that “the holding of continuous meetings in inter-sessional period has impacted the quality of participation from the Capital.” Ambassador Navnit pointed out that the Indian ministry “officials cannot devote their time on a daily basis to these negotiations as they have to attend to their regular work.” “The process going forward has to remain fair, inclusive and transparent,” India said, suggesting that “in this situation when only about four weeks are left before the winter break, I am unsure that these negotiations can be concluded by December 2020.” India said that “we will have to be pragmatic while negotiating,” adding that “we are in unprecedented times, faced with a global health crisis, [and] economies have taken a bad hit world over.” Therefore, “any hasty decisions that will imperil the issues of livelihood of poor fishermen will not go down well in the history of decision-making in the WTO,” India cautioned. SOUTH AFRICA’S INTERVENTION In its intervention, South Africa emphasized the need to “ensure that the outcome delivers on the mandate and all its elements as entailed in SDG 14.6.” “Effective S&D(T) is part of the mandate and we need to ensure that it is an integral part of the outcome and the disciplines given the challenges of developing countries and LDCs,” South Africa pointed out. The S&DT “should not be limited only to technical assistance and transitional period; that will not be acceptable to us,” South Africa’s trade envoy Ambassador Xolelwa Mlumbi-Peter argued. “Countries are at different levels of development and subsidization, (and) there can be no one-size-fits-all approach to disciplining fisheries subsidies and the principle of common but differentiated responsibilities is therefore important,” Ambassador Xolelwa said. Those countries that have not yet developed their fisheries sector need to be provided with an effective and implementable S&DT provision, she stressed, saying that “we look forward to the report of Ambassador Chambovey next week.” Ambassador Xolelwa said it is important that the disciplines being negotiated “must target the most harmful subsidies which is large-scale industrial fishing and ensure that we protect the livelihoods of small-scale and artisanal fishing especially given the effects of COVID-19.” “Importantly, we must ensure that the rights we have under UNCLOS (United Nations Convention on the Law of the Sea) are not limited nor nullified by this agreement,” Ambassador Xolelwa argued. South Africa said that “in relation to Art. 3.2, IPOA (International Plan of Action of the United Nations Food and Agriculture Organization for implementing the elimination of IUU fishing) should be our starting point, so Coastal State and RFMO (regional fisheries management organization) are the two entities recognized.” Ambassador Xolelwa argued that South Africa does not “see a role for a subsidizing State,” suggesting that “in addition, the Port State has a clearly defined role which does not include making a determination as currently provided for in Article 3.2 and 3.3 (of the revised draft text); its role could be included elsewhere in relation to information sharing to the Coastal State and RFMO.” South Africa cautioned that “having too many entities making a determination, may run the risk of creating uncertainty on which determination will be recognized.” As the negotiations are taking place in the context of promoting sustainability, South Africa said that it remains concerned “about fisheries management aspects that are brought into the text that nullify the effectiveness of the disciplines.” Commenting on the process for conducting the work, South Africa told the chair that his intent to convene the HoD (meetings) may not serve the purpose, saying that “we, however, wonder whether sufficient technical aspects on the various issues have been addressed, especially in view of the fact that various options are still in consideration.” Therefore, “high-level engagement should only be considered when there is sufficient progress in the negotiations,” South Africa said. It underscored the need for allowing “sufficient time to make progress in the negotiations and allow for effective engagement on your [the chair’s] revised text within the NGR (Doha Negotiating Group on Rules) in order to make progress.” “This is the only way that we will achieve a balanced outcome,” Ambassador Xolelwa emphasized. She said that it is very important “to be mindful of the effects of COVID-19 that constrain effective participation. Inclusive participation by all is important to ensure a fair and balanced outcome.” INTERVENTION BY ACP GROUP The ACP (Africa, Caribbean, and Pacific) group of developing and least-developed countries said that while it is “important to harness areas of clear convergence,” more work needs to be done “to find text that will help us (members) to reach consensus and to arrive at a balanced outcome on many important areas which we endeavour to include in a fisheries subsidies text and within the WTO mandate.” The ACP group, coordinated by Jamaica, expressed sharp concern “about fisheries management elements that can only lead to a WTO review of existing fisheries regimes, such as creating rules that will draw WTO into areas of stock assessments and conditions of stock.” The group expressed caution “against approaches to an IUU trigger that elevate other players to the level of making determinations in the waters under the jurisdiction of a coastal State or area under RFMO (regional fisheries management organization) competence.” On special and differential treatment, the ACP group said that “members must recall that this element is a condition in our negotiating mandate”, adding that it is not an afterthought. “Therefore, the ACP Group has devised texts, over the years, leading up to and after the Buenos Aires Ministerial, to shape disciplines that measure the type of subsidy and the type of fishing which impact overfishing,” the ACP coordinator said. “Equally, our special and differential treatment ideas are crafted to take into account the structure of the most problematic fishing and subsidies that support overfishing,” the ACP group said, suggesting that “the more we can refine the disciplines, together with what should not be in the scope of the agreement, the more precise special and differential treatment can emerge.” “We cannot convert these negotiations into a result that disproportionately places the responsibility on our Members who are not providing subsidies supporting overfishing and at the same time subject our systems to unwarranted interference,” the ACP group warned, adding that “some texts are surfacing that would allow loopholes for harmful subsidies.” In addition, the ACP group said that “some delegations see Special and Differential Treatment being limited to transitional periods and capacity building only,” arguing that it cannot accept such an approach.
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