After twenty years of negotiations on fisheries subsidies, WTO Members are just weeks away from another “hard” deadline for concluding the talks — the twelfth WTO Ministerial Conference being held in Geneva November 30-December 3. On November 8, the Chair of the Negotiating Group on Rules released a second revision to the draft text of a fisheries subsidies agreement along with a detailed explanatory note on the changes made from the first revision and the road ahead. See Negotiating Group on Rules – Fisheries Subsidies, Revised Draft Text, 8 November 2021, TN/RL/W/276/Rev. 2 and Fisheries Subsidies, Revised Draft Text, Chair’s Explanatory Note Accompanying TN/RL/W276/Rev.2, 8 November 2021, TN/RL/W/26/Rev.2/Add.1.
Ambassador Santiago Wills of Colombia, the Chair of the negotiations, gave a summary of next steps in his conclusion. Paragraph 148 provides the challenge ahead:
“148. Regarding next steps, where we need to go from here is simple: we have to genuinely negotiate. We have only three weeks left until MC12 and only two weeks before we need to send something to Ministers through the General Council. Our objective before then 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 our Ministers to decide. As I communicated to you in my e-mail of 4 November, and as has been the plan since we resumed our work following the summer break, we now will need to meet very frequently – essentially every day – starting tomorrow, to review everything together clause-by-clause.”
The WTO Members have a lot at stake in terms of whether an agreement can finally be achieved. In the WTO press release about the release of the revised text, the importance of getting to the finish line is alluded to by the Director-General. The agreement is in fulfilment of one of the UN Sustainable Development Goal subitems, 14.6, although the WTO already missed the completion date of 2020. See WTO News, Revised fisheries subsidies text kicks off intensified negotiations ahead of MC12, 8 November 2021, https://www.wto.org/english/news_e/news21_e/fish_08nov21_e.htm.
“The Director-General told members she has been engaging with political leaders, including at the highest levels, to get their support for a successful conclusion to the 21-year-long negotiations.
“‘The eyes of the world are really on us,’ she said. ‘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.’
“Members are scheduled to hold daily meetings on the basis of the latest draft text, with the goal of providing ministers a clean draft before MC12.
“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.”
A review of the revised draft and the Chair’s explanatory text show a large number of issues where strong differences remain, many provisions still in brackets, some alternative texts provided and other challenges all of which need to be largely resolved within two weeks. See, e.g., Art. 3.3, alternatives for type of proof and process needed for a finding that a vessel or operator has engaged in “illegal, unreported and unregulated fishing”; Art. 3.8, period that developing countries can provide subsidies and distance from shore for the fishing activities; Art. 4.4, similar bracketed provisions for subsidies for developing countries regarding overfished stocks; Art. 5.1(i), prohibited subsidies contingent upon or tied to fishing and related activities beyond the subsidizing Member’s jurisdiction; Art. 5.3, alternatives for disciplines on subsidies to vessels not flying the flag of the subsidizing Member; Art. 5.4, exceptions for developing countries including duration of exception and area from shore to which it applies; Art. 6.2, exceptions for LDC Members; Article 7, technical assistance and capacity building; Art. 8.2(b), whether to include notification requirements by Members of “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”; Art. 8.5, notification requirements of any regional fisheries management organization or arrangement (RFMO/A); Art. 9.1, institutional arrangements; Art. 9 and 10 (dispute settlement) more broadly; Art. 11.1 and 11.5 from final provisions.
The detailed description from the Chair of the changes made and major differences that remain confirms that the effort to get to a final agreement will be daunting. The Chair’s proposed path forward includes using several Friends of the Chair to help address a range of open issues. But it also includes daily meetings including in different configurations and the inclusion of officials from capital remotely.
Challenges facing Members include some of the broader reform issues raised by the U.S. and others. Various special and differential treatment provisions (“S&D provisions) apply to “developing countries” as well as LDCs. “Developing Country is a matter of self-selection, meaning many WTO Members claim such status despite not needing S&D to be competitive. The U.S., EU and others have raised concerns with the need to refocus S&D on those actually needing assistance. Are the qualifiers on the S&D provisions sufficient to see that major subsidizers like China and others are not eligible to avoid disciplines? Similarly, can the effort of some “developing countries” to seek S&D for decades possibly make sense if the Agreement is to achieve sustainability of wild caught fish and if there are few restrictions on who is a developing country?
The U.S. has had deep concerns about the use of forced labor on fishing vessels. See The Use of Forced Labor on Fishing Vessels, Submission of the United States, 27 May 2021, TN/RL/GEN/205. The revised draft text agreement contains only one of three proposed modifications to the draft text proposed by the U.S. to better address concerns about forced labor, and that provision (Art. 8.2(b)) is opposed by some Members, presumably those whose fleets are known or suspected of using forced labor. More broadly, will a final text result in meaningful reforms on fisheries subsidies or be so compromised that the agreement offers at best partial disciplines.
With the world watching and with the opportunity to restore at least partially the relevance of the WTO as a forum for trade negotiations, WTO Members have two weeks to get a near finished text agreed, with less than two weeks after that for Members to agree to a meaningful final text to ensure a successful 12th WTO Ministerial Conference. Let’s hope that the WTO Membership can rise to the occasion.