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TWN
Info Service on WTO and Trade Issues (Jan24/04) Geneva, 17 Jan (D. Ravi Kanth) — The chair of the Doha fisheries subsidies negotiations on 16 January issued a rather upbeat statement that the draft text that he had issued on the proposed disciplines on subsidies contributing to overcapacity and overfishing (OCOF) that caused the global depletion of fish stocks could form a “basis” for finalizing an outcome in the next six weeks before the World Trade Organization’s 13th ministerial conference (MC13) gets underway in Abu Dhabi on 26 February. The draft text was issued on 21 December to enable members to negotiate a clear text to be sent to trade ministers when they congregate in Abu Dhabi for MC13. At a press conference on 16 January, the chair, Ambassador Einar Gunnarsson of Iceland, said that he attempted to “capture the views and positions expressed by Members over the last year and longer,” to identify a path towards a landing zone. He acknowledged that his draft text “cannot be considered perfect for anyone and that refinement, adjustment, and fine-tuning over the coming weeks will certainly be needed.” The chair claimed that the OCOF disciplines are being structured as a two-tiered hybrid approach, which uses the annual aggregate value of each Member’s fisheries subsidies as the basis to identify which Members would fall into which tier. The hybrid approach comprises a list approach and effects approach, which was severely questioned by several members in their proposals. “The two-tier approach” is primarily designed to help the five big subsidizers – the European Union, the United States, China, Japan, and Korea – among others to continue with their billions of dollars in subsidies, said people involved in the negotiations. The chair explained that the disciplines to tackle OCOF subsidies “as currently drafted contains an illustrative list of presumptively prohibited types of fisheries subsidies, subject to a sustainability-based qualification whereby subsidies could nevertheless be provided if the subsidizing Member can make a specified demonstration in its notifications to the WTO regarding the sustainability measures it has in effect.” Ambassador Gunnarsson said, “the substance of the required demonstration is more demanding for the first tier, applicable to the 20 largest subsidizing Members, than for the Members in the second tier.” Effectively, the chair has removed distant water fishing from the list of prohibited types of fisheries subsidies and included it in the special and differential treatment category that may include countries like India and Indonesia in the future once they cross the threshold, said a negotiator who asked not to be quoted. The chair maintained that the draft text includes rigorous notification requirements for the top 20 subsidizing countries. The notification requirements as spelled out in Article A.1.1.C of the draft text include: “( c) The notifications referred to in Article A.1.1 (a) and A.1.1 (b) shall be sufficiently precise to enable other Members to evaluate the consistency of the subsidy with the conditions set out in Article A.1.1 and shall include the following: (i) status of the fish stocks in the fishery for which the subsidy is provided (e.g., overfished, maximally sustainably fished, or underfished) and the reference points used, and whether such stocks are shared with any other Member or are managed by an RFMO/A; (ii) conservation and management measures in place for the relevant fish stock; and (iii) to the extent possible, information on the fleet capacity in the fishery for which the subsidy is provided.” The chair said: “As identifying the top-20 subsidizing Members depends on having the relevant data, Article C.4 requires the notification of information, at specified intervals, regarding each Member’s aggregate level of fisheries subsidization on the basis of a template to be agreed by Members. Members falling under the second tier will apply the discipline in a manner similar to that contained in earlier drafts before the last ministerial meeting.” According to the draft text on notification and transparency, Article C.4 includes the following conditions: “Not later than 90 days from the entry into force of these disciplines, each Member shall notify to the Committee on Fisheries Subsidies all information that is necessary for the determination of its annual aggregate level of fisheries subsidies. Thereafter, each Member shall submit this information to the Committee on Fisheries Subsidies in its regular notifications of fisheries subsidies under Article 25 of the SCM Agreement, Article 8 of the Agreement on Fisheries [Subsidies], and this Article. Each Member shall submit this information through a template the content and form of which shall be previously agreed by Members.” In short, the big subsidizers seem to have secured a carveout to continue with their billions of dollars in subsidies if they meet the stringent notification requirements that would indicate that they are taking sufficient measures to ensure the stocks of vulnerable fish categories are being conserved. However, the track record of some of the big subsidizers in complying with the notification requirements appears to be anything but satisfactory as noticed in complying with farm subsidies notifications, said people, who asked not to be quoted. SPECIAL & DIFFERENTIAL TREATMENT In the WTO negotiations concerning disciplines in agriculture or now on OCOF subsidies, while the big subsidizers seem to be let off the hook, the developing countries are invariably being “pushed to the wall” in seeking flexibilities or transitional arrangements, said several people involved in the negotiations. The chair said: “Two new provisions, aimed at operationalizing the disciplines, are: * A two-phased “transitional period” for certain developing Members whose aggregate levels of subsidies would put them in the first tier of the disciplines (perhaps in reference to the over and above 0.8 percent threshold); and * A provision that would exclude from accessing the SDT provisions the very few developing Members engaged in fishing activities far beyond their areas of jurisdiction (China and a few other developing countries like Chinese Taipei in distant water fishing). This provision responds to the call by many Members to recognize in the disciplines that some WTO Members that are developing countries nevertheless have highly developed and industrialized fishing sectors.” In what appears to be a “divide-and-rule” tactic, the chair gave a special dispensation for the ACP (African, Caribbean and Pacific) countries whose “annual global volume of marine capture production does not exceed [0.8] percent as per the most recent published FAO data as circulated by the WTO Secretariat”. “A Member remains exempted until its share exceeds this threshold for three consecutive years. It shall be re-included in Article B.2 when its share of the global volume of marine capture production falls back below the threshold for three consecutive years.” The threshold of 0.8 percent of global volume of marine capture production remains in square brackets implying that it can be further negotiated and, in all probability, depending on the level of opposition, the number may go up further, said people familiar with the draft text. The chair also said: “Time is short and the clock is ticking louder and louder,” underscoring the need for “compromise” in order to “identify solutions that all Members will be able to live with.” QUESTIONS The draft text, according to several people, remains “lopsided” and somewhat “asymmetrical” in the “kid-glove” treatment accorded to the big subsidizers, particularly the European Union, whose access agreements could constitute a subsidy. Surprisingly, the chair seems to have ignored the issue, said one member who asked not to be quoted. However, it is not clear why the chair chose to exclude distant water fishing from the illustrative list of subsidies contributing to OCOF and brought it into the special and differential treatment category of flexibilities for developing countries under Article B. Although the subsidies provided for distant water fishing are dealt with in Article B.6 of the draft text, the underlying rationale is not clear, said people familiar with the negotiations. According to Article B.6 of the draft text, “A developing country Member engaged in fishing or fishing-related activities in any area further than one FAO Major Fishing Area beyond the one(s) adjacent to its natural coastline shall not have access to Articles B.1, B.2, B.3, and B.4.” So far, 55 countries have deposited their instruments of acceptance of the Protocol of the Agreement on Fisheries Subsidies that was concluded in 2022. However, it will come into effect only when two-thirds of members – i.e. 110 – accept the Protocol. Interestingly, the US did not contribute to the Fish Fund even though an agreement on fisheries subsidies was primarily mooted by Washington in December 2011 along with the “Friends of Fish” group led by New Zealand, said people familiar with the negotiations. +
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