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Info Service on WTO and Trade Issues (Sept23/13) Geneva, 21 Sep (D. Ravi Kanth) — India has apparently turned the tables in the ongoing Doha fisheries subsidies negotiations at the World Trade Organization, by circulating a comprehensive proposal concerning the overcapacity and overfishing (OCOF) pillar that seeks some fundamental changes in addressing the subsidies of the big subsidizers who are allegedly responsible for the global depletion of fish stocks. More importantly, the seven-page restricted unofficial room document issued by India calls for enhanced special and differential treatment provisions in line with the Paris Climate Change Agreement’s central principle of common but differentiated responsibilities (CBDR). The Indian proposal, seen by the SUNS, came on the day when the crucial fifth “Fish Week” on negotiating disciplines on subsidies contributing to OCOF began at the WTO on 18 September. The big subsidizers like the European Union, the United States, Canada, Japan, Korea, Chinese Taipei, and China may oppose the Indian proposal because it aims to shift the burden of obligations onto those who are responsible for the global depletion of fish stocks, said an African trade envoy who asked not to be quoted. India said that its proposal is in line with the WTO’s 12th ministerial conference (MC12) ministerial decision (WT/MIN(22)/33) regarding the Agreement on Fisheries Subsidies, which seeks to “achieve a comprehensive agreement on fisheries subsidies, including through further disciplines on certain forms of fisheries subsidies that contribute to overcapacity and overfishing, recognizing that appropriate and effective special and differential treatment (S&DT) for developing country Members and least developed country Members should be an integral part of these negotiations.” The Indian proposal contains five elements: (1) horizontal issues – provisions under scope; (2) OCOF pillar – disciplines; (3) OCOF pillar – CBDR-RC and exploiter (polluter) pays principles; (4) OCOF pillar – S&DT elements; and (5) notification and transparency. In its proposal, under scope, India called for the inclusion of “fuel subsidies, whether specific or non-specific” since they have the same harmful impact on the marine environment and ocean sustainability. India said when “dealing with the sustainability of fish stocks based on an environmental perspective, the market distortion principle will not apply, and the scope of prohibition cannot be limited to only specific fuel subsidies and leave out non-specific fuel subsidies.” Therefore, India said that the “inclusion of non-specific fuel subsidies under the scope for the comprehensive agreement is proposed.” The Indian proposal has also argued that the “Government-to-Government payments under fisheries access agreements must be treated as subsidies.” The previous chair as well as the current chair of the Doha fisheries subsidies negotiations have treated government-to-government payments as not subsidies, in what appears to be a specific carve-out provided to one of the big subsidizers – the European Union, said negotiators familiar with the discussions. While recognizing “the fact that such access agreements/arrangements can help some Members generate revenues, especially in some developing countries, including LDCs,” India argued that “further transfer, by a payer Member Government, of access rights that it has acquired from another Member Government to fish within the jurisdiction of such other Member should be treated as subsidies within the meaning of this Agreement.” “Excluding subsidies arising from the further transfer of access rights is like a blank cheque to distant water fishing nations that fish in other Member’s EEZ [Exclusive Economic Zone]/high seas,” India said. According to India, such exclusion “can easily circumvent the subsidy disciplines by entering into bilateral or circuitous agreements and avoid recovery of subsidy paid to commercial players.” MULTI-SPECIES FISHING In its proposal, India said, “There can be practical challenges in the implementation of disciplines and prohibitions of subsidies in the scenario of non-target fishing practices undertaken by the fishers in tropical waters operating with non-selective gears.” In the face of such practical challenges, India proposed that “the disciplines on overfished stocks (Article 4) under this Agreement shall not apply to multi-species fishing and fishing-related activities within the EEZ of coastal states by fishers using such non-selective fishing gears.” COF DISCIPLINES On the critical issue of OCOF disciplines, India has radically departed from the “list-based” approach followed by the previous and current chairs, underscoring the need to follow the “effects-based” approach. Consequently, India wants that disciplines should be decided on the basis of affirmative determination “by the coastal member, or a Regional Fisheries Management Organization/Agreement (RFMO/A) concerned, i.e., there should be a determination concerning the existence of subsidies contributing to overfishing and overcapacity, subject to the outcome of such determination, the subsidies should be disciplined.” An “affirmative determination” approach, according to India, must take into consideration the effects before the disciplines are imposed. However, India said, “notwithstanding the affirmative determination discipline, 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.” POLLUTER-PAYS PRINCIPLE India said that since the “Agreement pertains to sustainability of fish stocks which is an environmental concept that relates to the management and conservation of fish populations and ecosystems, there is an urgent need to incorporate the principles of “Exploiter (Polluter) Pays” and “Common but Differentiated Responsibilities – Respective Capabilities” and aims to bring balance to the text by placing higher responsibilities on distant water fishing nations (DWFN) who have heavily contributed to the current situation of overexploitation of fisheries resources, by imposing a moratorium on subsidies provided by them for 25 years.” Essentially, India is calling for a moratorium on subsidies provided by the big subsidizers in order to reduce their subsidies contributing to OCOF. According to India, “the definition of DWFN (distant water fishing nations) is based on the concept of FAO major fishing areas. A cut-off date of 17 June 2022 is proposed for identifying the list of such nations engaged in DWF (distant water fishing), this date being the date of the landmark Agreement on Fisheries Subsidies.” Further, “to address the issue of overcapacity and overfishing,” India said, “it is but natural to address the root cause of the problem through the reduction of capacities.” Accordingly, India proposed that DWFN reduce their capacities in a calibrated manner. According to India, “In pursuance of the CBDR-RC and Polluter Pays principles, DWFN as of 17 June 2022 needs to take a proportionate burden since such nations have historically allowed their fishers to exploit not only their jurisdictional waters but also beyond it.” S&DT PROVISIONS In its proposal, India said, “appropriate and effective special and differential treatment (S&DT) are needed inter-alia to protect the livelihoods of poor fishermen and address food security concerns.” To address the food security concerns and to protect the livelihoods of poor fishers, India said “a permanent carve-out for the category of low-income or resource-poor or livelihood fishing and fishing related activities is proposed.” More importantly, India said, “Such a carve-out will be irrespective of any geographical limitation or the type of activity engaged by such fishers.” The determination of “what would constitute low-income or resource-poor or livelihood fishing and fishing related activities should be decided by the national authorities,” India argued. TRANSITION PERIOD In its proposal, India said: “Appropriate and effective S&DT is required to ensure policy space to those Members who do not have the fiscal space or administrative or technical capacity to have their own fleet at present, even though they have a good catchment area.” According to India, “Such countries face competing demands on their limited financial, technical and administrative resources and in the process, never get to develop their fishing sector.” Therefore, India argued that “the prohibition under Article 5.1 shall not apply to subsidies granted or maintained by developing country Members that are not engaged in distant water fishing as of 17th June 2022 for fishing or fishing-related activities in the area and for species under the competence of a relevant RFMO/A for a maximum period of twenty-five years after the entry into force of this Agreement.” CARVE-OUT FOR EEZ Furthermore, India said: “Fishing activities, which predominantly exploit domestic fish stocks in developing country Members’ EEZ (22 to 370 Km) should be exempted from future disciplines. The sovereign Member should exercise its rights up to its EEZ. The sovereign rights of the coastal states up to their EEZs have been emphasized in some of the recent proposals.” Lastly, India said for enhancing transparency, it is proposed that Members engaged in DWF shall declare details of (i) fishing vessels engaged in fishing or fishing related activities in the distant waters, (ii) the RFMO/A where it is a member/contracting party and has engaged in distant water fishing, and (iii) the names and details of the High Seas where it has engaged in distant water fishing. +
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