On May 11, Ambassador Santiago Wills of Colombia, the Chair of the Negotiating Group on Rules responsible for the ongoing fisheries subsidies negotiations presented a a Draft Consolidated Chair Text to a meeting of the heads of delegation. The news release from the WTO, “Fishing subsidies negotiations chair introduces new text in run-up to July ministerial,” 11May 2021, https://www.wto.org/english/news_e/news21_e/fish_11may21_e.htm, is copied below.
“The chair of the fisheries subsidies negotiations, Ambassador Santiago Wills of Colombia, introduced on 11 May a new draft text aimed at bringing members closer to agreement ahead of the 15 July meeting of ministers. The text is based on members’ collective work and proposes landing zones to curb harmful fisheries subsidies and ensure the sustainability of the world’s oceans.
“‘The aim of this new draft text is to serve as the basis for work toward a clean text to present to a meeting of ministers on 15 July,’ the chair told heads of delegations at a meeting of the Negotiating Group on Rules. ‘This leaves us just two months to finish. The shared sense of urgency is palpable, and we need to harness that sense to finally agree to the compromise landing zones that will represent the ambitious and balanced outcome that ministers in Buenos Aires mandated us to find, to make a substantial and tangible contribution to the health of our shared oceans.’ The new draft text is available here. View the chair’s statement here.
“Under the mandate from the WTO’s 11th Ministerial Conference held in Buenos Aires in 2017 and the UN Sustainable Development Goal Target 14.6, negotiators have been given the task of securing agreement on disciplines to eliminate subsidies for illegal, unreported and unregulated fishing and to prohibit certain forms of fisheries subsidies that contribute to overcapacity and overfishing, with special and differential treatment being an integral part of the negotiations.
“The chair noted that the draft reflects language from WTO members, whether reflected in proposals, or a facilitator’s work, or expressed during meetings and consultations. The whole text is up for discussion and it will ultimately be up to members to resolve the issues that remain open, he said.
“Members will have the opportunity next week to identify key issues they find the most difficult to agree on and then will convene in weekly meetings starting 24 May. Each week will be dedicated to a specific issue in the text.
“’I know it will not be easy. Nothing is easy when 164 members need to reach consensus, but it is doable. The good thing is that we have a complete text in front of us on which we can engage,’ the chair said. ‘Now it’s time to sprint for the finish line.’”
Draft Consolidated Chair Text and Explanatory Note
The draft consolidated chair text is nine pages in length and consists of an introductory page, eleven articles and sixteen footnotes. See Fisheries Subsidies, Draft Consolidated Chair Text, TN/RL/W/276, 11 May 2021, https://docs.wto.org/dol2fe/Pages/SS/directdoc.aspx?filename=q:/TN/RL/W276.pdf&Open=True. Amb. Wills explanatory note is 26 pages and goes through both an introduction, a review of preliminary matters, a detailed discussion of each article and sub-article noting changes from prior drafts, and ends with a review of the work program going forward. See Fisheries Subsidies, Draft Consolidated Chair Text, Chair’s Explanatory Note Accompanying TN/RL/W/276, TN/RL/W/276/Add.1, 11 May 2021, https://docs.wto.org/dol2fe/Pages/SS/directdoc.aspx?filename=q:/TN/RL/W276A1.pdf&Open=True.
- whether the agreement will apply to fuel subsidies to fishing and fishing related activities at sea that are not “specific” within the meaning of Art. 2 of the Agreement on Subsidies and Countervailing Measures (Art. 1.2);
- special and differential treatment provisions under Articles 3 (prohibition on subsidies to illegal, unreported and unregulated fishing (Art. 3.8)), 4 (prohibition on subsidies concerning overfished stocks (Art. 4.4)) and 5 (prohibition on subsidies concerning overcapacity and overfishing (Art. 5.5 Alt.1 and Alt. 2));
- whether disciplines in Article 5 extend to “subsidies for a vessel not flying the flag of the subsidizing Member” (Art. 5.4);
- specific provisions for least developed country Members (Art. 6);
- fleshing out Article 7 on technical assistance and capacity building to developing and least developed countries;
- what additional notification requirements are mandatory or subject to an “extent possible” exception under Article 8;
- a range of institutional arrangement provisions under Art. 9 depending on whether the agreement is to be an annex to the Agreement on Subsidies and Countervailing Measures or a stand-alone agreement.
To get a true grasp of the range of issues that still need addressing, a careful review of the Chair’s Explanatory Note is required. It is clear that major differences remain on a very large number of topics and many issues go to whether any agreement will truly address the sustainable development goal at the heart of the negotiations. Moreover, there are areas not yet addressed.
For example, looking at Articles 9 (institutional arrangements) and 10 (dispute settlement), there are several issues identified that do not appear in the draft articles such as when the agreement will come into effect and whether some types of disputes will be excluded and whether specific remedies for violations are needed. Paragraphs 129-132 of the Explanatory Note are copied below and review these matters.
“129. Before concluding my remarks on this provision, I would like to highlight one critical institutional issue that has not been discussed in full, which is entry into force. As you know, it could take many months if not years for a new WTO instrument to enter into force. This gap – as well as anything that Members may decide to do during this period, such as a provisional application of this instrument – could affect how we see certain issues. Now that we are in the endgame mode, I would urge you to turn your minds to this issue.
“Article 10: Dispute settlement
“130. Dispute settlement, covered in Article 10, also depends on whether the disciplines become an annex to the SCM Agreement or a standalone agreement. This is because Article 30 of the SCM Agreement already provides for application of the Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU) and special and additional rules for prohibited subsidies in Article 4 of the SCM Agreement. If the fisheries subsidies disciplines are annexed to the SCM Agreement, these existing rules of the Agreement would apply to the disciplines, unless we specifically decided to depart from them. The current text in Article 10 was added in 126/Rev.1 to reflect this default position.
“131. This text has remained unchanged since then, but this does not mean that we have not been discussing this. In fact, so far in 2021 alone, we have held dedicated sessions on various aspects of dispute settlement, such as non-violation claims and standard of review. And the views exchanged in those meetings were very helpful. In particular, there appears to be a general acceptance that the DSU and Article 4 of the SCM Agreement should be the starting point, and that we should not be inventing new dispute settlement rules for the fisheries subsidies disciplines. Reflecting this understanding, this Article is unbracketed in the new text.
“132. This is not meant to imply that there was full convergence on this provision, or that no more work is needed on it. In fact, during our recent meetings on dispute settlement, some Members wanted to specifically exclude non-violation claims or set a separate standard of review. In addition, I am well aware of the views that fisheries-subsidies-specific remedies and/or countermeasures could be crafted. Removing the square brackets here only means that Article 4 of the SCM Agreement and the DSU are a starting point, on which we can build as needed.”
An active schedule leading up to the July 15 virtual TNC meeting with trade ministers
The Chair on page 26 of his Explanatory Note outlines next steps. With only eight weeks until the virtual TNC meeting with trade ministers to see if a final agreement on fisheries subsidies can be reached, not surprisingly Amb. Wills outlines a very busy schedule of meetings essentially requiring focus and heads of delegation and capital involvement every week. The level of activity is explained in paragraphs 142-146 of Amb. Wills’ Explanatory Note, copied below.
“142. As I said during the last TNC meetings, I will be calling on all of you to engage intensively, in a compromise-seeking, convergence-oriented mode, aimed at quickly finding acceptable landing zones. I also ask you to give these negotiations priority, and to be ready to meet at short notice and in a range of different configurations – be it bilateral meetings, small-group consultations, confessionals, or plenary sessions, including with the engagement of the DG as appropriate – as well as bilateral consultations. If needed, we also need to be ready to work nights and weekends to get this done.
“143. I appreciate and count on your flexibility on the substance and process, as we head into this very intensive phase of our work. Though we should remain flexible, I understand from many of you that a calendar of activities would be useful for your preparation, especially if you require input from capitals. Therefore, I intend to organize thematic weeks starting the week of 24 May as follows:
“• Each week will be dedicated to a specific pillar or pillars from the text.
“• The first two days of each week would be for consultations. This would be an opportunity for Members to reach out to me, and for me to reach out to Members, in respect of particular issues regarding that week’s theme.
“• The rest of each week would be dedicated to meetings in various configurations. This is where flexibility would be required given that the form of meetings would depend on each topic.
“• I can assure you that the principles of transparency and inclusiveness will be respected. And in this regard, I plan to give transparency briefings each week.
“144. An outline of this structure, including the themes for each week, will be circulated shortly. I hope that you will find this calendar of activities useful in terms of your planning.
“145. To help my thinking in structuring specific topics of discussion, I would like to start by first touching base with each of you before we start work during the thematic weeks. Therefore, on 20 and 21 May I intend to hold brief HoDs plus one, in-person, 10-minute confessional style meetings with interested delegations. The idea is for you to identify up to three issues in the text that are the toughest for your delegation. These meetings will be short and to the point; all you have to do is come with your list of those three tough issues and share it with me. Further details, including how to schedule a slot, will be communicated shortly.
“146. I look forward to engaging with all of you during this final stage of these negotiations. I know it will not be easy. Nothing is easy when 164 Members need to reach consensus, but it is doable. The good thing is that we have a complete text in front of us on which we can engage. I am sure no delegation will be entirely happy with the text – you will all find something you don’t like, in addition to things that you do like. Let us now figure out those key issues that require further teasing out in Geneva so that we can present something to Ministers that provides them with clean and straightforward options in July. As I said at the last TNC, the Negotiating Group on Rules has come a long way. Your leadership and willingness to engage over the last year has led us to this point. Now it’s time to sprint for the finish line.”
Conclusion
Ambassador Wills has laid out a very aggressive work program to conclude an agreement that has been being negotiated for twenty years. With fundamental differences among WTO Members on how ambitious an outcome is desired, the challenges, even with the revised text and hard work undertaken in the last year, remain steep.
In my last post, I indicated that in my view the TRIPS waiver proposal and controversy surrounding how to achieve equitable access to COVID-19 vaccines was likely to suck a lot of the oxygen out of the WTO for other issues. See May 10, 2021, World Trade Organization — possible deliverables for the 12th Ministerial Conference to be held in Geneva November 30-December 3, 2021, https://currentthoughtsontrade.com/2021/05/10/world-trade-organization-possible-deliverables-for-the-12th-ministerial-conference-to-be-held-in-geneva-november-30-december-3-2021/ . Hopefully that assessment will prove to be inaccurate. The world needs WTO Members to achieve a meaningful outcome on the fisheries subsidies negotiations. We should know in a few weeks whether Members can walk (efforts to achieve vaccine equity) and chew gum (fisheries subsidies negotiations) at the same time.
Terence Stewart, former Managing Partner, Law Offices of Stewart and Stewart, and author of the blog, Current Thoughts on Trade.
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