‘A lot rests on Members’ shoulders’ — sixth WTO fisheries text circulated

“I have seen first-hand members’ collective commitment and dedication. … I genuinely believe that we can deliver a balanced a meaningful outcome on fisheries subsidies by MC12”

Not done yet: Wills warned a lot of work remains | Piotr Arnoldes, Pexels

UPDATES
See “Update on WTO fisheries subsidies talks”,
including the drafts the chair sent to the rescheduled Ministerial Conference on June 10, 2022 and the final agreement

By Peter Ungphakorn
POSTED NOVEMBER 10, 2021 | UPDATED JUNE 11, 2022

The chair of the WTO fisheries subsidies negotiations circulated a new draft agreement on November 8, 2021, saying “I genuinely believe that we can deliver a balanced a meaningful outcome on fisheries subsidies” by the Ministerial Conference at the end of this month.

“The eyes of the world are really on us,” WTO Director-General Ngozi Okonjo-Iweala told ambassadors at the negotiations meeting where the new text was introduced.

“Time is short and I believe that this text reflects a very important step toward a final outcome. I really see a significant rebalancing of the provisions, including those pertaining to special and differential treatment, while, at the same time, maintaining the level of ambition.”

The new draft is the sixth compiled and circulated by the chair, Ambassador Santiago Wills of Colombia, since June 2020, the last three released as public documents since May this year.

It is based on negotiations since September and was presented to a meeting of heads of delegations (usually ambassadors) of the WTO’s 164 members.

The 8-page new text is here, with a 20-page explanation from the chair. See also this timeline and this WTO news story

Unchanged is the basic outline. The talks aim to eliminate or curb subsidies:

  • for illegal, unreported and unregulated (IUU) fishing
  • causing reduced fish stocks
  • causing overcapacity of overfishing

The latest changes are on a range of topics. Wills said he attempted to deal with comments that the previous draft was imbalanced and where members simply disagreed on:

  • disciplines relating to fishing in areas beyond national jurisdiction
  • notification and transparency
  • non-specific fuel subsidies
  • the subsidy prohibition in the illegal, unreported and unregulated fishing pillar
  • proposals concerning the use of forced labour in fishing
  • vessels not flying the flag of the subsidizing Member.

The biggest changes he said are on special treatment — exemptions or more lenient terms — for developing countries.

They include a new attempt to recognise the wide differences between developing countries that have large ocean-going fishing fleets (including China, Indonesia and India) and those that do not. In some areas differences remain over transition periods for these countries.

Differences remain on subsidies for distant-water fishing and subsidies that are not specifically targeted at fishing but still have an effect on it.

In three places the draft offers alternative chunks of texts on: how countries determine whether fishing is illegal, unreported and unregulated; prohibiting subsidies for boats not flying the flag of the subsidising country; and a transition period for developing countries.

The US has called for a prohibition on the use of forced labour. Although this does not appear to be written specifically in the text, Wills has pointed to a provision in square brackets that would require countries to notify annually “any vessels and operators for which the Member has information that reasonably indicates the use of forced labour, along with relevant information to the extent possible” (8.2(b) in the draft).

Wills summarises all of these in a statement (below), and in more detail in a 20-page document accompanying the draft.

“This is my best attempt at responding to members’ calls to provide a revised text which aims to come as close as possible to the final version that would be sent to ministers,” Wills said, referring to the November 30–December 3 WTO Ministerial Conference in Geneva.

He warned that “the work is not done yet — we still have some distance to cover.”

One measure of the remaining differences is the number of pairs of square brackets in the text — 91 — signifying parts of the text that still need to be sorted out.

Some of this is straightforward. Agreeing on whether to call the final document an “instrument” (or an “agreement” or anything else) would get rid of 38 pairs of square brackets in one go. Some of the remaining 53 pairs will be more difficult than others, and some are linked.

Wills said the new draft should be viewed as a whole, not just item by item. Technical and political issues are linked. So, “each amendment not only addresses a specific issue but also adheres to broader considerations of balance.”

“Starting tomorrow [November 9], members will begin a clause-by-clause discussion of the entire text,” he announced. This was originally intended to start in mid-October.

“The objective of this final phase is to collectively evolve this draft text ideally into a completely clean text, or at least as clean as possible with only one or two issues left for ministers to decide,” he said.

“We have only a short time left before MC12 so these discussions must be very focused and solution-oriented.”


What the chair saidBack to top

Statement of Ambassador Santiago Wills of Colombia to journalists on November 8, 2021, summarising what he said to delegations at the meeting on fisheries subsidies earlier the same day


Good day everyone and thank you for coming to this press briefing.

As you know, this morning I introduced to Heads of Delegations a revision of the draft negotiating text on fisheries subsidies, where I put forward changes based on the collective work of Members since September.

With just a few weeks to the 12th Ministerial Conference (MC12), this is my best attempt at responding to Members’ calls to provide a revised text which aims to come as close as possible to the final version that would be sent to Ministers. The idea is to put us in a good position for a detailed clause-by-clause discussion of the text beginning tomorrow. We have only a short time left before MC12 so these discussions must be very focused and solution-oriented.

Producing the revised text required me to take a holistic view, and to keep in mind the inherent technical and political linkages that Members have raised amongst the different provisions. When reading the revised text, I would encourage you to look at the changes holistically rather than in isolation, given that each amendment not only addresses a specific issue but also adheres to broader considerations of balance. Overall, the text contains some important enhancements to the provisions on special and differential treatment for developing and least-developed country Members, while maintaining the overall level of ambition.

The biggest substantive changes are with regard to special and differential treatment for developing and least-developed country Members. The text takes a big step in a direction sought by these Members by including an exemption from the main discipline on subsidies contributing to overcapacity and overfishing. In that particular provision, the exemption applies to subsidies:

  • Of least-developed country Members;
  • Of developing country Members whose annual share of the global volume of marine capture production does not exceed a certain threshold. This is known as the ‘de minimis approach.’ In this draft that threshold is suggested at 0.7%, but subject to negotiations; This is a change from the previous text because it removes the time limit on the exception as long as the member fall under the de minimis criteria.
  • And in respect of developing country Members’ low income, resource-poor or livelihood fishing and fishing-related activities up to 12 nautical miles from shore.

Developing country Members that have a higher share of global fish catch would also benefit from a transitional period which was already contained in the older text. No specific duration of this transition period is suggested in the revised text — rather this question is represented in the text by a negotiable X number of years, to reflect the fact that some developing country Members are seeking transition periods of up to 25 years, while some other Members consider that any transition periods should last for only a few years.

Regarding subsidies to distant water fishing — in the revised draft text, subsidies to fishing in the unregulated high seas remain subject to the prohibition without exception, whilst subsidies contingent upon, or tied to, distant water fishing (mainly in other Members’ Exclusive Economic Zones and in areas of competence of Regional Fish Management Organizations/As) would be prohibited. To attract more convergence, I’ve included in the text that this prohibition applies unless the subsidizing Member can demonstrate that it meets the sustainability requirements provided for in the text. You’ll see this change reflected in the text by moving the former article 5.2(a) into the list of subsidies under Article 5.1. This change has a knock-on effect of no longer requiring an exemption for certain payments under fisheries access agreements, which was contained in the previous version of the text. However, Members would need to notify information regarding their access agreements.

The revised text also provides sets of alternative language for:

  • due process requirements for determinations of Illegal, Unreported and Unregulated fishing that would be used to trigger the prohibition on subsidies to IUU fishing;
  • a prohibition on subsidies for a vessel not flying the flag of the subsidizing Member; and
  • an additional transition period for graduating least developed country Members.

Finally, the revised text includes language in brackets in the provisions on the prohibition of subsidies contributing to Illegal, Unreported and Unregulated fishing and in transparency and notification, aimed at addressing the issue of forced labour in certain fishing activities.

These were the major revisions that I made in seeking to bring a new overall balance in the revised draft text. It goes without saying that everything in this text is without prejudice to any member’s positions or views. The whole text is up for discussion and it will ultimately be up to Members to resolve all issues and bring these negotiations to a successful conclusion by MC12.

This brings me to the next steps. Starting tomorrow, members will begin a clause-by-clause discussion of the entire text. The objective of this final phase is to collectively evolve this draft text ideally into a completely clean text, or at least as clean as possible with only one or two issues left for Ministers to decide.

So, the work is not done yet — we still have some distance to cover. That said, it is no exaggeration that the work of WTO Members in this negotiation over the past 20 years — and to an extent how the world views the WTO as a whole — will be judged by whether in the next few weeks we can finally deliver on the fisheries subsidies negotiating mandate. A lot rests on Members’ shoulders. But I have seen first-hand Members’ collective commitment and dedication over the past two years, and I genuinely believe that we can deliver a balanced a meaningful outcome on fisheries subsidies by MC12.


Updates:
June 11, 2022 — adding updates box at the top

Image credits:
Fishing boats in Morocco | Piotr Arnoldes, Pexels CCO

Author: Peter Ungphakorn

I used to work at the WTO Secretariat (1996–2015), and am now an occasional freelance journalist, focusing mainly on international trade rules, agreements and institutions. (Previously, analysis for AgraEurope.) Trade β Blog is for trialling ideas on trade and any other subject, hence “β”. You can respond by using the contact form on the blog or tweeting @CoppetainPU

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